323 S. (P. A.) v. S. (A. F.) [2004] IEHC 323 (13 September 2004)


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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> S. (P. A.) v. S. (A. F.) [2004] IEHC 323 (13 September 2004)
URL: http://www.bailii.org/ie/cases/IEHC/2004/323.html
Cite as: [2004] IEHC 323

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    [2004] IRLHC 323
    THE HIGH COURT
    RECORD No. 2004/13 HLC
    IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991, AND
    IN THE MATTER OF THE HAGUE CONVENTION AND
    IN THE MATTER OF C. A. S., A MINOR
    BETWEEN:
    P. A. S.
    APPLICANT
    and
    A. F. S.
    RESPONDENT
    JUDGMENT of Mr. Justice Roderick Murphy delivered on the 13th September, 2004
    1. Preliminary
    1.1 This matter was heard on affidavit and by way of extensive cross examination of the applicant and the respondent in relation to their affidavits and by oral testimony given by other witnesses on Thursday 8th September, a date especially fixed by the President of the High Court. The Court had the opportunity of reading the affidavits and exhibits prior to the hearing.
    1.2 The family law summons filed the 14th May, 2004 recited that the minor was born on 2nd December, 2003 and was wrongfully removed from the jurisdiction of Ontario, Canada on or about the 13th April, 2004 by the respondent mother.
    1.3 The applicant father claimed, inter alia, a declaration of the respondent mother had wrongfully retained the minor in jurisdiction of the courts of Ireland; an order for the return forthwith of the minor to Ontario; an order pursuant to s.13 of the Act staying any proceedings in this jurisdiction and an order for interim directions pursuant to s.12.
    2. Facts agreed
    2.1 The court had considered the following affidavits in addition to that of the applicant and that of the respondent prior to the hearing:
    Liam M DeFeu, solicitor of the applicant, together with exhibits;
    Affidavit for A. F. M. S., respondent, sworn the 22nd June, 2004;
    Alan M. Cooper, Barrister and Solicitor: affidavit of laws sworn 7th July, 2004, with exhibits;
    Stanley Fienberg: affidavit of laws sworn 3rd September, 2004 with exhibits.
    MS, sister of the respondent, sworn 23rd August, 2004;
    DM, mother of the respondent, sworn 23rd August, 2004;
    The respondent's second affidavit was sworn 23rd August, 2004 together with exhibits.
    2.2 The following would appear to be uncontroverted:
    The respondent/mother went to Canada in 1999 and met the applicant/father in April the following year.
    On the 15th/16th May, 2000 they became engaged.
    The parties were married on February 17th, 2001 in Toronto where the respondent/mother's family attended.
    Later that year, in September, they were on holiday in Ireland.
    In February, 2003 the respondent became pregnant.
    On 1st May, 2003 the respondent visited her parents in Ireland to attend a family confirmation and christening. The visit was intended to be for two weeks. However, on the 3rd May, the respondent suffered seizures and was hospitalised. Three days later on 6th May the applicant travelled to Ireland and remained until 17th May. His mother came to Ireland on 10th and returned to Canada on 16th May.
    Almost three weeks later, on the 22nd May, the respondent was discharged from hospital to her parent's home. Four days later the applicant came back to Ireland, staying with the respondent in her parent's home. He remained until July 30th, when he returned to Canada until 17th August. He came back to Ireland, probably until late September, when he returned to Canada, when the parties' apartment was rented out to a friend for business purposes. He returned to Ireland in November.
    On the 2nd December, the minor was born in Ireland. Three days later the applicant's mother, sister and brother, together with the respondent's family celebrated the christening of the minor.
    On 11th December the parties went to London together with the respondent's two sisters for a consultation in relation to her illness, the treatment having been postponed until after the birth.
    On 12th January, 2004 the respondent went to London for surgery together with the applicant and the respondent's mother and brother. The respondent returned to this jurisdiction to recuperate on 19th January.
    3. Facts found by the Court
    3.1 Arrangements were made for the return of the parties together with their daughter to Canada on Tuesday 24th February, 2004. However, the circumstances in relation to these arrangements is the subject of some disagreement between the parties. The respondent/mother, in cross examination, said that she went along with the arrangements but that unhappy differences had arisen in relation to the drug taking and violence of the applicant. She had delayed saying that she would not go with him until 23rd February, 2004, the eve of the arranged return. The respondent did, in fact, return on Wednesday 25th February together with the minor. However, in her evidence, she said that this was for a temporary, though undetermined stay, which was at the insistence of her mother-in-law who had assured her that she could go back to Ireland and who offered to drive her to the airport.
    The applicant, on the other hand, had said, in his affidavit, that the delay was caused by insufficient medical supplies which had to be acquired the following day. In cross examination, however, he agreed that there had been a row in relation to the respondent's return.
    While the minor's airline ticket was exhibited in the respondent's affidavit showing a return date of 2nd March and a valid date to the 24th May, this would appear to have been done either because it was cheaper to buy a return ticket or that it could be used at a later stage. However, the respondent's ticket was not exhibited before the court. It would appear that the respondent travelled on the return leg of the ticket form the previous year when she came to Ireland in May 2003.
    The parties stayed with the applicant's mother in Canada and celebrated the birth by way of a family party on Saturday 28th February.
    3.2 The respondent says that on Saturday 21st February she had told her sister,
    M. S., that she was not going to return to Canada and intended to stay in Ireland with the minor. In her affidavit M. S. said that the respondent had told her that the marriage was over and because of the way the applicant had acted over the previous year that she couldn't cope with him and didn't love him anymore. She said that her sister had told her that she intended to tell the applicant of her decision after their brother's birthday party that evening, on Saturday 21st February, 2004. She was advised by her sister that she did not tell the applicant until Monday 23rd February. She said that she was advised by the respondent that the respondent had decided to go to Toronto for the family party and stay for a couple of weeks.
    3.3 In relation to the discussions on the eve of the applicant's departure on 23rd February the respondent says that she had the impression that the applicant was accepting that there was no question of her going back to Canada with the minor on a permanent basis. She says that he said words to the effect "I knew it would come to this". She said that he had asked her to come over for a few weeks that "you owe that to my mother at least". She believed that as a result of this conversation the applicant was in agreement that the daughter would reside permanently in Ireland and travelled to Canada in good faith. She said that she would not have travelled had she not received that representation from the applicant acknowledging that she would reside in Ireland with their daughter.
    3.4 She said that the applicant's demeanour had changed quite substantially when she was in Canada. She said that in effect he had changed his mind and that she was not at liberty to travel back to Ireland with her daughter. She wished to travel back to Ireland but could not obtain any assistance from him, he was not maintaining her or making any provisions and was quite aggressive towards her. The applicant says that in or about early April 2004, his wife informed him that she was not happy and wanted her to move back to Ireland. He said he was shocked and could not believe what he was hearing. He informed her that he would not agree to her moving back to Ireland with the minor. If she insisted on moving the matter would have to be resolved in court. He reminded her about everything they were through, that she was having the baby and her brain surgery. He said he told her that he thought she would feel differently if she gave herself a little time. He suspected that she may have been suffering from post-partum depression and stress from the brain tumour. His wife did not discuss the subject further. On Tuesday 13th April he said that his wife advised him she wanted to visit some friends in Toronto and would be staying overnight. She did not return. He could not contact her on her cell phone. He called the airport and was informed that his wife did not leave through Pearson Airport in Toronto. He discovered from his phone bills that the respondent had gone to Niagara Falls and then to New York City. Such travel was absolutely without his consent.
    3.5 In relation to this disputed evidence the court makes the following findings:
    The discussion on the night of Monday 23rd February, 2004 was not limited to a postponement of the respondents travelling to Canada on the basis of medical supplies: rather the respondent had indicated that she would not go back. While the reference to what the applicant said to the effect that "I suppose it has come to that" is vague and imprecise. It would seem to be consistent with his pleading that she should come back for a period as she owed it to his family. I also accept that some assurances had been given, either by the applicant or his mother or both, that she could return with the minor.
    I must also infer that relationships between the parties, living with the respondent's family, was difficult. It is probable that this difficulty was exacerbated by the incidence in relation to drug taking and drug possession given in evidence by Detective Garda Barry Myers and admitted by the applicant, that the possible lifestyle resulting therefrom, from the aftermath and treatment in relation to the respondent's operation and, of course, from the demands of a new baby which were further pressure on the parties.
    In this regard I prefer the evidence of the applicant in relation to the respondent's departure from Canada. I find that the respondent did tell the applicant that she was visiting friends and would stay overnight. I accept her evidence in relation to the collection of all the minor's clothing and effects when the applicant was in bed the morning of her leaving and when he asked no questions. However, this does not justify her [assertion?] that she left with her husband's consent. I find that she left without his knowledge where her leaving was in fact to return to Ireland.
    I find that the applicant did not give his consent to the respondent leaving Canada with their daughter on 13th April, 2004.
    There is a further dispute with regard to the activities of the parties in Canada from late February to the date of the alleged abduction. The applicant, in his evidence, says that the respondent did not adequately look after the minor; watched television for the greater part of the day and had no marital relationship with him. He says that they visited a lawyer with a view to the respondent being sponsored by him as a potential Canadian citizen. He said that his family had offered him $50,000.00 to buy a house, that they looked at houses and had also the possibility of serving a 30 day notice on the tenant of their former apartment.
    The respondent said she was prevented from coming home, had delayed the filling out of the immigration form though admitted that she had signed it, refused to give her marriage certificate or her birth certificate in relation thereto and acquiesced in seeing houses from a car on a single afternoon.
    It seems to me that the respondent was depressed and allowed herself to go along with the applicant's plans. I also find that she was discouraged from returning to this jurisdiction.
    3.6 The evidence in relation to the applicant's work is somewhat sketchy. The respondent said that her husband was not at work on the day she left as he had no job. He agreed that he had received money from his parents. He did work in Ireland as is evidenced by the tax forms in relation to the three weeks immediately before his leaving Ireland on the 24th February, 2004. There was no evidence of the applicant having worked in Toronto during the periods he returned there in May, August and the period from late September to November of last year. However, it appears that he has the support of, and the opportunity of working within, his family businesses.
    The respondent, on the other hand, was employed full time at Cabby's Roadhouse, her mother-in-law's pub, before she left for Ireland. At that time the applicant said he was working as a manager at a large pub where he lived.
    The respondent was and is not a Canadian citizen and, it would appear, was not legally entitled to work. Nevertheless, while she says that she was the sole breadwinner, I find that both had earnings at that material time.
    4. Further issue to be determined
    4.1 It was agreed between the parties that the determination of habitual residence of the minor was the key issue in the case. It was agreed that marriage of the parties gave them joint custodial rights.
    The issues of habitual residence is more a matter of fact than a matter of law.
    4.2 The relevant facts seem to be as follows: the respondent says that there could have been no habitual residence until the actual return to Canada on 24th February of this year and that until that date the habitual residence of the minor was in this jurisdiction. The return to Canada was temporary and for a short period. She had been induced to go on the representations both of the applicant and his mother that she could return and accordingly their daughter had habitual residence in Canada.
    Moreover, without prejudice to that contention, the mother says that there was a grave risk that the child would suffer if her mother joined her in Canada given the behaviour of the applicant. Reliance was had on the report of Dr. Dunne, the psychiatrist. Moreover, the respondent said that she is, and has been, the primary carer of the minor. The respondent would have no support in Canada, would be an illegal immigrant, would face divorce proceedings which had, since then been initiated by the applicant without any resources of her own.
    Counsel for the respondent submitted that habitual residence comprised two elements: that of the actual place of living of the minor and evidence of a settled intention.
    5. The Convention
    5.1 The law which the court has got to consider in relation to the Convention has been referred to in the affidavit of Liam M. De Feu, solicitor for the applicant. The civil aspects of international child abduction (the Hague Convention) which was given effect to by the Child Abduction and Enforcement of Custody Orders Act, 1991. Mr De Feu refers to the procedure thereunder and to the authorisation by the applicant of the central authority in Ireland to deal with these proceedings.
    5.2 Article 3 of the Convention states:
    "The removal or the retention of a child is to be considered wrongful where:
    (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention;
    (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."
    5.3 Article 13 provides as follows:

    "The judicial or administrative authority of the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:
    (a) the person, institution or other body having care of the person of the child was not actually exercising the custody rights at the time of removal or retention or had consented to or subsequently acquiesced in the removal or retention; or
    (b) there is a grave risk that his or her return would expose the child to physical, psychological harm or otherwise place the child in an intolerable situation.
    The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
    In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the central authority or other competent authority of the child's habitual residence."
    5.4 Questions in relation to the care of the child are not covered by Article 13. Any argument in relation to the indirect grave risk to the child by virtue of an imposition on the mother to return her child, assuming that the habitual residence of the child was other than this jurisdiction, do not come for consideration at this stage. The parties should be reminded that the function of a court under the Convention is simply to determine, in addition to whether the child should be returned to the jurisdiction of its habitual residence, to determine which jurisdiction is appropriate to deal with the issues of custody and access. At present both parties have rights (and obligations) in relation to custody. The party not living with the child has a right to access.
    5.5 The Affidavit of laws of Mr. Stanley Fienberg was handed into Court on the day of the hearing and replaces that of Mr. Alan Cooper. Both affidavits relate to the laws of the province of Ontario. I note, in passing, that the second affidavit was submitted after the objection by the respondent to the first affidavit on the grounds that the deponent thereof was acting for the applicant in relation to divorce proceedings in Ontario.
    I accept Ms. Jackson's submissions on behalf of the respondent that it is the law of this State which determines, under the Convention cases, the habitual residence of the minor.
    It follows that any of the authorities referred to in relation to custody are not relevant to the present proceedings.
    6. Case law
    6.1 Ms. Rita O'Meara on behalf of the applicant referred to Re B (minors) (Hague Convention Case) (2) (1994) 1 FCR 394 at 395 where Waite J. summarised three principles relevant to habitual residence as follows:
  1. The habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves and neither parent can change it without the express consent of the other or an order of the court.

  2. When it is applied in the context of married parents living together, habitual residence is a term referring to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being, whether of short or of long duration. All that the law requires for a "settled purpose" is that the parents' shared intention in living where they do, should have sufficient continuity to be properly described as settled.

  3. Although habitual residence can be lost in a single day, for example, upon departure from the initial abode, with no intention of returning, the assumption of habitual residence requires an appreciable period of time and a settled intention.

    4. 6.2 In regard thereto I should refer to S(A) v. S(P) [2003] (FL), D (M) v. D (ET) [2003] FL), Nessa v. Child Adjudication Officer and the Dombrowicz case.
    6.3 In S (A) -v- S (P) Family Law Journal, winter 2003, 21 the applicant married the respondent in 1990 and lived in England. Two daughters were born. The wife alleged that the marriage had broken down in 1994; the husband disagreed. In July 1996 the wife took the two children to Ireland with the consent of her husband to think things over as she was unsure that the marriage would survive. From Ireland she wrote to her husband stating that she would return to England with the children but them informed him by telephone that she would be staying in Ireland. A draft separation agreement providing that the children would remain with their mother was sent to, but ignored by, the husband. The husband brought an application under the Hague Convention. The wife made allegations that the husband had, on several occasions, sexually abused one of the daughters. An assessment of the daughter concluded that it was very unlikely that she was inventing the allegations of sexual abuse by her father. The Supreme Court granted an appeal and ordered that the children be returned to the jurisdiction of their habitual residence in England on foot of undertakings from the appellant and the solicitor for the respondent. The Court held that the father did not take any action inconsistent with an application under the Hague Convention and did not acquiesce in the retention of the children in Ireland. The Court also held that the best interest of the children were met by having issues of custody and access determined by the courts of the jurisdiction of the habitual residence. Denham J. accepted the evidence of sexual abuse and stated that she would not order the return of the daughter to the father pending full custody proceedings but stated that there was no evidence that there was a grave risk in returning the daughter to the jurisdiction of England and Wales.
    6.4 In D (M) -v- D (ET) High Court (O'Sullivan J.) 6th March 1998, Family Law Journal (winter 2003) 14 granted an application that the child to be returned to England where the consent of their moving to Ireland had been later repented. While there was evidence of violence, including verbal abuse, this occurred when the applicant was in the presence of the respondent or of another child but was not violent towards the child retained on its own. The courts stated that it should not permit an abducting parent to set at nought the Convention by refusing to travel with the returning child.
    6.5 Counsel for the respondent replied on Nessa -v- Chief Adjudication Officer (1998) EWCA see iv 164 where the Court of Appeal, in a social welfare case, considered the position of the applicant who arrived in the United Kingdom from Bangladesh on the 22nd August, 1994 and, a fortnight later, claimed income support. The Adjudication Officer claimed she was not habitually resident in the United Kingdom. The Social Security Appeal Tribunal, however, decided that the applicant was habitually resident as of the date of arrival in the United Kingdom. The applicant had been the wife of a Bangladeshi who lived in the United Kingdom from 1962 until his death in 1975. She was not his only wife. The Tribunal had accepted her evidence that she decided to leave Bangladesh to be habitually resident in the United Kingdom.
    The Court of Appeal held that habitually describes residence which has had already achieved a degree of continuity and that a person is not habitually resident on the day when she arrives even if she takes up residence voluntarily and for settled purposes. By majority (Morritt L.J. and Sir Christopher Staughton, Thorpe L.J.) dissenting dismissed the appeal and followed Lord Brandon of Oakbrook in Re J (a minor) (abduction; custody rights) (1990) 2 AC 562 who held that:
    "An appreciable period of time and a settled intention would be necessary to enable him or her to become so. Showing 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, a situation with regard to habitual residence will necessarily be the same as hers".
    It seems to me that this case has no application where there is joint custody. Moreover, the habitual residence of the child follows that of its parents. Neither parent on his or her own can unilaterally change that habitual residence. A child does not have to be resident in the country of its parents to be deemed to be habitually resident there. In any event, notwithstanding the reluctance of the respondent mother, the minor was actually resident in Canada at the time of the abduction.
    6.6 A further complex case is that of Dombrowicz a decision of the Scottish Court of Sessions of the 2nd May, 2001 relied upon by the respondent. This case also referred to Lord Brandon's judgment. In that case the Court ordered the return of the child to Switzerland where the father was then working and from which jurisdiction the mother had brought the child back to Scotland where both had previously worked. Despite the short time span involved the child was held to be habitually resident in Switzerland at the date of his removal.
    It seems to me that a breach of access and custody rights occurred in Ontario by reason of the removal without the consent by the respondent (see Re G; Times 26th January, 1993 referred to in Davis Rosenblatt and Galberries pg 16).
    7. Decision of the Court: Grave Risk
    7.1 The first decision of the Court relates to Article 13: which is relied on by counsel on behalf of the mother that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. This is, of course, on the assumption (not yet decided upon) that the habitual residence of the child is in Ontario, Canada.
    I have, in this regard, considered the authorities as submitted and, in particular the decision of the Supreme Court in TM and DM ex parte EM –v- JM delivered 9th July, 2003 with regard to the law in this regard. The exception occurs in very rare situations.
    7.2 I have carefully and fully considered the allegations of violence and wrongdoing in relation to the taking of drugs made by the respondent in respect of her husband. The evidence of Detective Garda Myers is in relation to charges not yet served, concerning marijuana which would, if proven, result in a monetary fine. I have also to consider the averments of the applicant in relation to him being drug-free at present and being willing to undergo whatever test the court might determine in relation to his present drug-free status. I also have to consider the respondent's evidence of the two failed treatment programmes, not controverted by the applicant, in relation to her husband's future status.
    I find that the violence complained of is not sufficiently detailed nor persistent nor of such a nature so as to comprise, either directly or indirectly, a grave risk to the child. Moreover, given the evidence of the applicant that the alleged abduction has occasioned a wake-up call with regard to his behaviour that, subject to undertakings to be given in relation to his drug-free status, that his behaviour does not constitute a grave risk that the return would expose the child to physical or psychological harm or otherwise place her in an intolerable situation. I again stress that this preliminary consideration is based on the assumption, not yet decided, that the place of the habitual residence is in, or was at the time of the abduction, in Ontario, Canada.
    8. Decision of the Court: Habitual Residence
    8.1 The Court has already made certain findings of fact in relation to the intention of the respondent in returning to Canada on the 25th February, 2004. To my mind, this is not the relevant issue in this case. The key issue, as acknowledged by counsel on behalf of the respondent, is that of habitual residence. If the Court were to find that habitual residence was in this jurisdiction given the period of time that the respondent was here from May 2003 to April 2004 then this Court would have jurisdiction to deal with issues of custody, maintenance and access. If, on the other hand, the Court were to find that the place of habitual residence of the father and mother were to remain that of Ontario, Canada then, it would seem to follow, that the child born outside that jurisdiction, would require the habitual residence of its parents.
    It is clear from the case law that, though undefined in statute and in the Convention, that habitual residence has to be understood according to its ordinary and natural meaning. It refers to a person's abode in a particular place or country which has been adopted voluntarily and for settled purpose as part of the regular order of his life for the time being whether of short or long duration (see Re N (abduction; habitual residence) (2000) 2 FLR 899 at 905G – 906B.
    The question of 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. Habitual residence can be lost in a single day if a person leaves a country with a settled intention not to return but to take up a long term residence elsewhere instead.
    There is no fixed period of residence required in the new country before habitual residence can be established. What must be shown is residence for a period which shows that the residence has become habitual or will or is likely to continue to be habitual.
    A short period of residence may suffice in some cases and there may be special cases where someone is resuming residence in a country where they were formally habitually resident rather than coming for the first time.
    Relating the facts, as found by this Court, to the above criteria it seems to me that the Convention refers to the habitual residence of the child Acts Article 3; that the habitual residence of the child is that of its married parents and that the voluntary adoption by them for settled purpose is what is relevant to the determination of the Court.
    The evidence given in relation to the respondent's visit was that it was for a specific purpose and duration of some two weeks. Even if there had been some difficulties in the relationship which lead the respondent to wish to determine that relationship her stay in Ireland was involuntary due to her sudden illness. The evidence of Dr. Dunne, already referred to, is clearly relevant as an independent professional. The evidence of Mr. Marsh and of Mr. Galvin is also relevant in this regard.
    8.2 Counsel for the applicant stressed that the move to Ireland was not voluntary or for settled purpose and that the report of the psychiatrist, Dr. Dunne and of the neuro-surgeon, Mr. Roderick Galvin and of Mr. Marsh exhibited in the affidavit of the respondent and the applicant and of cards sent by the respondent's family on St. Patrick's Day, two weeks after the respondent had returned to Canada, were relevant.
    Dr. Dunne in his undated report for the respondent's solicitor exhibited in the respondent's affidavit states as follows:
    "She seems to believe now that when she returned to Ireland in May 2003 she had lost feeling for P (the applicant) yet there are things she says like "I came home for a holiday" and a subsequently that P came over to live with her and her parents and even though he came back and forward from Canada working here and P being part of the party that went to London when she was having her surgery (on January 12, 2004) and a statement in a letter by Mr. Marsh written at this time that she was emigrating to Canada, raises doubts in my mind as to whether she is correct in saying that she had determined to leave P when she came back even though this is certainly what she clearly believes."
    Dr. Dunne continued:
    "I suspect that in May 2003 when she came back she was thinking of leaving him but she hadn't clarified these thoughts and decided (sic) and that they weren't as well-formed, clear and decisive as they are now. She is still in a state of doubt, otherwise a doubt that she would have welcomed him or allowed him into her home or rather parental home. I do think however that it is likely that she had serious doubts about him and his capacity to act as a husband and meet her needs even though she believed and still believes that he is deeply in love with her and also loves [the minor]. Although she recognises his love for her and even more his love for the child she now believes he hasn't got the capacity or ability to meet these needs."
    Mr. Galvin's letter dated the 15th May, 2003 is to "whom it may concern". He refers to the respondent as being on vacation in Ireland and states that [her husband] clearly has a very difficult year ahead of him and would naturally hope to spend a lot of it on this side of the Atlantic. Mr. Galvin concludes "I understand that he may have some personal difficulties at home and I hope that these can be dealt with as sympathetically as possible in the light of the above".
    Mr. Marsh MA FRCS in his medical report dated the 15th January, 2004 referred to his carrying out a radical resection of the tumour (the initial histology which showed it to be an unremarkably low grade astrocytoma) then states "she will be leaving hospital on the 16th of January and plans to emigrate to Toronto in a few weeks time. I would recommend that she be followed up with regular MRI brain scans for several years to confirm that the tumour has been completely excised or to identify any recurrence."
    Both St. Patrick's Day cards referred to a hope that she was well settled in Canada. M. S., her sister, in oral evidence to this Court, stated that the cards were written to both the applicant and the respondent and sought to assuage any suspicion that the respondent had indicated her intention of not remaining and her plans to come home and their knowledge that the respondent had told them that she was being prevented from doing so.
    8.3 I have some concern regarding the inclusion of the minor on her mother's passport. The applicant's evidence was that it was done without his consent and was part of the subterfuge in the abduction of the minor.
    8.4 It does not seem to me that the action of the applicant in giving up the lease of the apartment (rather than sub-letting which he claims) nor the bringing to this jurisdiction of personal effects of the parties (though leaving some of these in storage) constitutes the adoption for a settled purpose as part of the regular order of his life at the time being of habitual residence in this jurisdiction.
    Even if, having regard to the length of time and work undertaken by the applicant in this jurisdiction that could constitute some degree of settled purpose for a short duration, the acquiescence by the respondent of an eventual return in February 2004 would seem more compelling.
    8.5 It was not until the eve of the applicant's departure, according to the evidence of the respondent, that he was informed of her reluctance to return and agreement to do so for a temporary though undetermined period. I can quite understand her position at the time given her allegations of violence, corroborated by the evidence of her family in relation to the applicant's temper and the unsavoury aspects of the drug raid on their house, that the respondent believed the relationship to be at an end. Indeed, the institution by the applicant of divorce proceedings in Ontario shortly after his return (and, indeed, the unorthodox reference to affidavits sworn in June 2004 in relation thereto) seem further to corroborate the unhappy family differences, this does not affect the determination of the habitual residence of the child.
    8.6 Counsel for the respondent relies on the decision in Nessa to the effect that actual residence is necessary in order to have habitual residence. It seems to me that this is misconstrued given that the habitual residence of a child is that of its parents and that, accordingly, children born abroad are deemed habitually resident in the jurisdiction of their parents.
    It does not appear to me that habitual residence can be lost where the parties left Canada where there was no settled intention by the parties to remain in Ireland. Moreover a short period of residence may suffice where somebody is resuming residence in a country where they were formally habitually resident as in the case of the parties returning in February of this year even if the respondent had no intention of remaining. What is relevant is the habitual residence of the child at the date of the alleged abduction. She had been registered for medical purposes, had lived for seven weeks in Canada but, most importantly her parents had been habitually resident in that jurisdiction.
    It is clear from the case law that one of two parents with joint parental responsibility cannot change the habitual residence of their child unilaterally.
    8.7 In the exercise of my discretion, and the obligations of the Court under the Hague Convention, it seems to me that the balance favours the making of a return order in order that matters can be dealt with by the Courts in Ontario.
    I reiterate that the matter before this Court is a narrow one: that of the return of the child to her place of habitual residence. The Order is not to return the child to the applicant – this is a matter for the courts of Ontario.
    Indeed in relation to the apprehensions of the respondent it would seem appropriate that an undertaking be given with regard to the drug-free status of the applicant in this regard. Whether this is a matter for this Court or the courts in Ontario is a matter in relation to which counsel may be in a position to give guidance.
    I will, accordingly, make an Order under the 1991 Act directing that the child, the subject matter of this application, should return to Ontario in accordance with the request from the central authority.
    I will further discuss with counsel details of how this Order should be put into effect and the specific undertakings referred to and the transmission of these undertakings if deemed appropriate to the relevant authorities in Ontario.
    Approved: Murphy J.

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