S. -v- S. [2009] IESC 77 (19 November 2009)

S. -v- S. [2009] IESC 77 (19 November 2009)

The Supreme Court held that the child was habitually resident in Australia immediately prior to the alleged wrongful retention. The parents did not have a joint settled intention to reside in Ireland for a sufficient period to establish habitual residence there. The period of residence in Ireland was not appreciable, and the evidence did not support the acquisition of habitual residence in Ireland. The High Court applied the correct legal principles, and its findings of fact were not erroneous in law. Accordingly, the retention of the child in Ireland was wrongful under Article 3 of the Hague Convention, and the order for return to Australia was affirmed.

Citation
[2009] IESC 77
Parties
Applicant/respondent: A. S.; Respondent/appellant: C. S.
Jurisdiction
Ireland
Judgment Date
19 November 2009
Procedural Posture
Appeal (child Abduction Under Hague Convention) / Supreme Court Judgment on Appeal From High Court
Outcome
Appeal dismissed; High Court order affirmed
Legal Topics
Habitual Residence, Wrongful Retention, Jurisdiction Under Hague Convention, Parental Custody Rights
Family Law International Law Child Abduction Habitual Residence Wrongful Retention Jurisdiction Under Hague Convention Parental Custody Rights

Case Brief

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Parties

A. S.

Applicant/respondent

C. S.

Respondent/appellant

Procedural Posture

Appeal (child Abduction Under Hague Convention) / Supreme Court Judgment on Appeal From High Court

Legal Issues

  1. 1 Whether the child was habitually resident in Australia or Ireland immediately prior to the alleged wrongful retention under Article 3 of the Hague Convention
  2. 2 Whether the retention of the child in Ireland was wrongful under the Convention
  3. 3 Whether the applicant consented to the child remaining in Ireland

Ratio Decidendi

The Supreme Court held that the child was habitually resident in Australia immediately prior to the alleged wrongful retention. The parents did not have a joint settled intention to reside in Ireland for a sufficient period to establish habitual residence there. The period of residence in Ireland was not appreciable, and the evidence did not support the acquisition of habitual residence in Ireland. The High Court applied the correct legal principles, and its findings of fact were not erroneous in law. Accordingly, the retention of the child in Ireland was wrongful under Article 3 of the Hague Convention, and the order for return to Australia was affirmed.

Court Disposition

Appeal dismissed; High Court order affirmed

Orders

  • The child is to be returned to the jurisdiction of the courts of Australia in accordance with the Hague Convention.