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Cite as: [1996] IEHC 10

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S.-A. (Z.) v. T. (S.) [1996] IEHC 10 (26th August, 1996)

THE HIGH COURT
1996 No. 211 Sp.
IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991
AND IN THE MATTER OF T. A. AND K. A. (INFANTS)
BETWEEN
Z. S-A.
PLAINTIFF
AND
S. T.
DEFENDANT

Judgment of Miss Justice Laffoy delivered on 26th day of August, 1996

1. The Plaintiff is an Egyptian national who has lived in England since 1987. The Defendant is an Irish national. The Plaintiff and the Defendant were married in London on 2nd June, 1989. A child of the marriage, T., who is the subject of these proceedings, was born on 30th January, 1993 in England. There were difficulties in the marriage before the birth of T. and these difficulties continued after his birth. On 9th February, 1993 a decree of divorce nisi was granted on the petition of the Defendant by the Willesden County Court and on 5th October, 1993 the said decree was made final and absolute and the marriage of the Plaintiff and the Defendant was thereby dissolved. Notwithstanding the divorce, the Plaintiff and the Defendant resumed co-habitation. On 21st January, 1995 the Defendant gave birth to a second son, K., in England. Subsequently, the relationship between the Plaintiff and the Defendant broke down and on 1st August, 1995 the Defendant, with the consent of the Plaintiff, left London with her two children and went to live in her home town, Midleton,

2. Co. Cork, where she has lived ever since. The Plaintiff visited and stayed with the Defendant and the children at Midleton in September, 1995 and again for a week from

21st January to 28th January, 1996. At the end of the visit in January, 1996 the Defendant made it clear that he did not wish the children to continue to reside in this jurisdiction.

3. In these proceedings, which were instituted by special summons issued on 26th March, 1996, the Plaintiff claimed an Order under Part II of the Child Abduction and Enforcement of Custody Orders Act, 1991 for the return forthwith of T. and K. to England, which it was claimed was their habitual residence prior to their wrongful removal and/or wrongful retention within the terms of Article 3 of the Hague Convention. The proceedings were grounded on an affidavit sworn on 26th March, 1996 by Alison Moore, the solicitor instructed on behalf the Plaintiff in the proceedings. This affidavit did not disclose that the marriage of the Plaintiff and the Defendant had been dissolved. A replying affidavit, sworn by the Defendant on 17th April, 1996, was filed and in that affidavit the Defendant averred that in or about the month of October 1993 she had obtained a decree absolute of divorce from the Plaintiff. However, no copy of the decree was exhibited.

4. The matter came on for hearing in this Court on 8th May, 1996. During the course of the hearing the Plaintiff testified that he had no knowledge of the divorce decree, although he did know that the Defendant had sought a divorce and she had shown him a paper. He had not got any document from her solicitor or from the court and he had not been called to Court. Subsequently, during the hearing, when the existence of the decree absolute dated 5th October, 1993 was confirmed by Counsel for the Defendant, the proceedings were adjourned by consent to enable the Plaintiff's legal advisers to ascertain what, if any, rights the Plaintiff has in relation to K. under English law. The matter was subsequently adjourned from time to time by consent to enable the Plaintiff's legal advisers to complete their investigations. Eventually, on 24th July, 1996 Counsel for the Plaintiff indicated that the Plaintiff was in a position to proceed with the application in relation to T. but was discontinuing the application in relation to K. The hearing was resumed on 31st July, 1996.

5. The Plaintiff has filed an affidavit sworn on 2nd July, 1996 by Maria Marshall, a solicitor practising in England, which proves that, in England, by virtue of the Children Act, 1989, where parents of a child are married, both of them have parental responsibility unless an Order has been made under that Act. Parental responsibility is defined in Section 3 of that Act as -


“.....all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

6. Ms. Marshells' affidavit further proves that under English law a parent does not lose parental responsibility as a result of the marriage being dissolved. This means that, in the absence of an Order to the contrary, the Plaintiff retains parental responsibility in relation to T. despite the existence of the decree absolute made on 5th October, 1993. On the basis of this evidence, I am satisfied that under English law, there being no Order to the contrary, a decision as to T.'s place of residence must be a joint decision of the Plaintiff and the Defendant.

7. I must now address the crucial issue of fact in this matter, that is to say, the basis on which the Plaintiff agreed that the Defendant and the two children should leave London and go to live in Midleton. In the grounding affidavit sworn by her on 26th March, 1996 Alison Moore averred as follows:

“I am instructed that on 1st August, 1995, the Defendant and the two children travelled to Ireland and by agreement the Plaintiff followed in September 1995. At all times it was agreed between the Plaintiff and the Defendant that the children would spend no longer than six months in this jurisdiction. The Plaintiff returned to England after one week and subsequently was made aware that the Defendant did not intend to return to England with the children”.

8. An affidavit of English law sworn by Helen Young, an English solicitor, was exhibited in the affidavit of Ms. Moore. In her affidavit Ms. Young averred that her understanding was that the Plaintiff's consent to the removal of children to Ireland was conditional on their being returned by 1st February, 1996 at the latest.

9. The Defendant's version, as deposed to in her affidavit sworn on 17th April, 1996, which was substantiated by her oral testimony, was that in July 1995 a reconciliation between herself and the Plaintiff was out of the question. She discussed with the Plaintiff her wish to return to Ireland permanently with the children and the Plaintiff was in agreement that this was the best course. The Plaintiff paid for the airline tickets to Ireland, which were one way tickets, and he drove the Defendant and the children to the airport. No limit was put on the duration of the Defendant's stay in Ireland with the children and it was clearly understood by the Plaintiff and the Defendant that the Defendant was returning to live in Ireland for good. On the day immediately following her arrival in Ireland, that is to say, on

2nd August, 1995, the Defendant applied for local authority housing and was placed on the housing list on that date. Initially she lived with her parents. The Plaintiff came on a visit in September 1995 which lasted for two weeks. The Defendant discussed with the Plaintiff that she was settling down for good in Co. Cork with the children, which he accepted. The Plaintiff promised he would come over again at Christmas time. However, there was very little contact between the Defendant and the Plaintiff after the Plaintiff's return to England. It became apparent that he did not intend coming over for Christmas but he indicated that he might come over for the childrens' birthdays at the end of January 1996. He did in fact come on the 21st January, 1996 and stayed for a week. During that period the local authority allocated a flat to the Defendant. The Plaintiff inspected and approved of the flat and offered to come back to Ireland and help with the redecoration in due course. However, before the Plaintiff returned to England on 28th January, 1996 he announced that he had changed his mind and that he wanted to bring the two boys to Egypt to live, that he intended marrying again in Egypt and that his new wife would look after the two children.

10. In his oral testimony the Plaintiff testified that around July 1995 he offered the Defendant and the children a holiday break, but instead the Defendant wanted to live in Ireland for good. She knew he would not agree but she persuaded him that, if he did not like it, she would come back after six months. He did agree that the Defendant and the children should come to Ireland and get a place for the family to stay to see if the Plaintiff could adjust to life in Ireland. The Plaintiff came to Ireland in September and stayed for five days. No agreement was reached as to where the family would live. Subsequent to the September trip the Plaintiff told the Defendant's brother that he did not want the children to live permanently in Ireland. He did not have the resources to travel to Ireland at Christmas and again in January. He came in January. In relation to the flat which was allocated to the Defendant during the visit, he was happy that it was warm for the children by contrast to the damp flat in which they were living at the time. He did promise to rearrange the flat so that the Defendant and the children could move in. Before he departed for England he told the Defendant that he was going back to England to see a solicitor and to get everything settled by a solicitor. He did not tell the Defendant that he wanted to bring the two boys to Egypt. He considers they would be better living in the cosmopolitan atmosphere of London where they would be exposed to Egyptian culture and Irish culture and they would have a better chance of getting on in life. The basis on which it was agreed that the Defendant and the children should come to live in Ireland was that, if he did not like living in Ireland, after six months the Defendant and the children would return to London. The Plaintiff did not need to come here to live to see if he could adjust. He had seen enough during his two visits.

11. In relation to the areas of conflict between the Defendant's version and the Plaintiff's version of the basis of the agreement between them on foot of which the Defendant and the two children came to Ireland on 1st August, 1995, I accept the Defendant's version and I reject the Plaintiff's version, because I find that the Defendant's subsequent conduct is consistent with her version, whereas the Plaintiff's subsequent conduct is not consistent with his version. Immediately on her arrival in Ireland the Defendant set about acquiring local authority housing, which is consistent with an agreement that she was to remain permanently in this jurisdiction with her children. Nothing in the Plaintiff's conduct after 1st August, 1995 suggests that the Plaintiff and the Defendant had agreed a six month trial period during which the Plaintiff's ability to adapt to life in Ireland would be assessed. The fact that the Plaintiff, on the first of his two visits, spent a short period in September 1995 in this jurisdiction visiting the Defendant and the children is more consistent with a visit to the children than a sojourn during which the Plaintiff's ability to adapt to Irish life was being tested. That the Plaintiff's second visit of one week's duration occurred as late as the last week in January 1996, when, if the Plaintiff's version is correct, the Plaintiff might have expected to be living with the Defendant and the children in London within a very short period, entirely undermines the credibility of his version. Moreover, the fact that the Plaintiff failed to disclose to his legal advisers the existence of the decree absolute, which, on the evidence, I am satisfied he was aware of, raises serious questions as to his reliability as a witness.

12. On the evidence, I find that the Defendant came to Ireland with the two children on 1st August, 1995 by agreement with the Plaintiff and on the basis that the Defendant would establish a home for herself and the children and would live in Midleton indefinitely. I also find that the Plaintiff abided by this agreement until his visit in January 1996 was nearing its end, at which stage he changed his mind and resiled from the agreement that the Defendant and the children should live in Midleton indefinitely. I think it is probable that the reason for this volte face was that the Defendant refused to resume sexual relations with him.

13. The provision of the Hague Convention on which the Plaintiff relies is

14. Article 12, which provides as follows:


“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or the wrongful retention, the authority concerned shall order the return of the child forthwith.”

15. Article 3 defines the concepts of wrongful removal and wrongful retention in the following terms:


“The removal or retention of a child is to be considered wrongful where:
(a) it is in breach of rights of custody attributed to a person....., either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned at sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State”.

16. In Article 5 the expression “rights of custody” is defined for the purposes of the Hague Convention as including -


“..... rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence”.

17. The purpose of the Hague Convention is set out in the preamble as the desire -


“.....to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence .....”.

18. Counsel for the Defendant submitted that the Plaintiff has not established that the matter comes within the ambit of Article 12 on the following grounds:


(1) Under the Hague Convention removal and retention are mutually exclusive concepts, so that a child the subject of proceedings under the Hague Convention may be wrongfully removed or wrongfully retained but not both and a litigant bringing a claim under the Hague Convention must elect to pursue one or other allegation. In support of this proposition, Counsel for the Defendant relied on the following passage from the speech of Lord Brandon of Oakbrook in Re H and Another (Minors) (1991) 3 ALL ER 230 at page 240:
“With regard to the second point, whether removal and retention are mutually exclusive concepts it appears to me that, once it is accepted that retention is not a continuing state of affairs but an event occurring on a specific occasion, it necessarily follows that removal and retention are mutually exclusive concepts. For the purposes of the Convention, removal occurs when a child, which has previously been in the State of its habitual residence, is taken away across the frontier of that State, whereas retention occurs where a child, which has previously been for a limited period of time outside the State of its habitual residence, is not returned to that State on the expiry of such limited period. That being so, it seems to me that removal and retention are basically different concepts, so that it is impossible either for them to overlap each other or for either to follow upon the other. This interpretation of the Convention is strongly supported by the fact that, throughout the Convention, removal and retention are linked by the word ‘or’ rather than the word ‘and’, which indicates that each is intended to be a real alternative to the other.”
(2) There is no evidence that T. was wrongfully removed from England.

(3) Under the Hague Convention retention is an event which occurs once and for all on a specific occasion, not a state of affairs. Again, Counsel for the Defendant cited the decision of the House of Lords in re H and Another (Minors) in support of this proposition and, in particular, the following passage from the speech of Lord Brandon at page 239:
“With regard to the first point, whether the retention is an event occurring on a specific occasion or a continuing state of affairs, it appears to me that Article 12 of the Convention is decisive....The period of one year referred to in this Article is a period measured from the date of the wrongful removal or retention. That appears to me to show clearly that, for the purposes of the Convention, both removal and retention are events occurring on a specific occasion, for otherwise it would be impossible to measure a period of one year from their occurrence.”

(4) No evidence has been adduced of the wrongful retention of T. within this jurisdiction. In particular, no evidence has been adduced of an event which occurred on a specific occasion which can be identified as the starting point of the wrongful retention of T. within this jurisdiction.

(5) For the Hague Convention to apply, T. would have to have been habitually resident in England immediately before the commencement of the wrongful retention. Counsel for the Defendant submitted that in determining where T. was habitually resident at any particular time, regard should be had to the principles enunciated by Lord Brandon in the following passage from his speech in C -v- S (1990) 2 ALL ER 961 at page 965:
“The first point is that the expression ‘habitually resident’, as used in Article 3 of the Convention, is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B. The fourth point is that, where a child of J's age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers.”

19. Applying the foregoing principles, it was argued, given that after 1st August, 1995 T. was in the sole lawful custody of the Defendant, he became habitually resident in Midleton when, as was urged happened, the Defendant became habitually resident in Midleton. Counsel for the Defendant also advanced the alternative proposition that T. was not habitually resident in England at the commencement of the alleged wrongful retention on the basis that the Plaintiff consented to a change of habitual residence of T. on the 1st August, 1995 and, unless the Court is satisfied that there was agreement between the Defendant and the Plaintiff that T. would be returned to England permanently on a particular date, which agreement it was urged did not exist, it must be inferred that the agreement between the parties was that T. would lose his habitual residence in England permanently and not temporarily.

20. While the claim for relief in these proceedings is pleaded on the basis of alleged “wrongful removal and/or wrongful retention”, it has been clear from the outset that the factual basis of the Plaintiff's claim is that the removal T. from England on 1st August, 1995 was with the consent of the Plaintiff, albeit conditional consent, and was therefore lawful, but that T. was wrongfully retained in this jurisdiction when the condition precedent to his permanent residence in this jurisdiction was not fulfilled within the time alleged to have been agreed for its fulfilment. Accordingly, it seems to me that this Court should and must treat the claim for return of T. under Article 12 as being based on the wrongful retention of T. in this jurisdiction. Moreover, accepting the statement of Lord Brandon in re H that retention under the Hague Convention is an event occurring on a specific occasion, as I do, it seems to me that the Plaintiff's claim as formulated does not offend this concept of retention: as I understand the Plaintiff's claim as formulated, it is that the wrongful retention commenced at the expiry of the six month period from 1st August, 1995 without the condition precedent as to the Plaintiff adapting to life in Ireland being fulfilled.

21. In relation to the issue of identifying the habitual residence of T. after

1st August, 1995, in my view, the crucial factor is whether the consent given by the Plaintiff to T. living with the Defendant in this jurisdiction was conditionally limited in duration or open ended. If it was conditionally limited in duration, as asserted by the Plaintiff, the mere fact that T. was residing in this jurisdiction with the Defendant would not result in the loss of his habitual residence in England; England would continue to be his habitual residence until the condition was fulfilled. However, having made the finding of fact that the consent was open ended and that the Plaintiff agreed with the Defendant that the Defendant could bring T. to this jurisdiction and could establish a home for herself, T. and K. in this jurisdiction and remain here indefinitely, I must conclude that the Plaintiff agreed that T. would cease to be habitually resident in England and, on the Defendant settling in this jurisdiction with the intention of staying, T. would become habitually resident in this jurisdiction. The situation here is not that T. has been in the sole lawful custody of the Defendant since 1st August, 1995; on the contrary the evidence establishes that under English law the Plaintiff and the Defendant have at all material times had and continue to have joint parental responsibility, including joint lawful custody. On the basis of the finding of fact I have made, the correct interpretation of what has occurred is that the Plaintiff and the Defendant, exercising their joint parental responsibility, agreed to the change of T.'s habitual residence from England to Ireland and T. in fact ceased to be habitually resident in England when the Defendant ceased to be habitually resident in England, which occurred within a short period of her arrival in this jurisdiction in August 1995.

22. I conclude that the Plaintiff is not entitled to invoke Article 12 of the Hague Convention to procure the return of T. to England in a summary manner because the Plaintiff has not established that T. was habitually resident in England immediately before the point in time when the Plaintiff resiled from his agreement that T.'s place of residence should be Ireland indefinitely or immediately before the expiration of six months from 1st August, 1995. The international or trans-frontier element, which is an essential feature of the application of the Hague Convention, is absent in this case.

23. Accordingly, I dismiss the Plaintiff's application.

© 1996 Irish High Court

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