THE HIGH COURT
			2001/100M
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 RG (MINOR)
BETWEEN
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AS THE CENTRAL AUTHORITY FOR IRELAND
EX PARTE PG
			APPLICANT
AND
VC AND VC
			RESPONDENT
JUDGMENT of Mr. Justice Roderick Murphy delivered on the 26th day of April, 2002
1.	FACTS
	This is a case involving the alleged wrongful retention of the Minor R.G. by her Aunt, the Respondent who was sister of the Minor’s deceased mother.  The Respondent had been appointed by the mother as the testamentary guardian of the Minor.
	The Applicant is the Minor’s father who had been married to the mother until their divorce in 1985.  Some six years later the mother and the Applicant lived together for a period of some three years in England at which time the minor was born in 1994.
	On her diagnosis in February, 2000 with terminal cancer, the mother returned to her family in Ireland taking the minor with her with the consent of the Applicant.  

2.	ISSUE
	What is in issue is the determination of the date on which the alleged wrongful retention of the Minor commenced.  Article 3 of the Convention provides that the question of habitual residence must be decided as a fact at the time immediately before the removal or retention.
3.	PROCEEDINGS
3.1.	The matter had been heard by the High Court and appealed to the Supreme Court who remitted the matter to the High Court in the circumstances outlined by the Supreme Court.
	In her judgment McGuinness J. (with whom Denham and Murray J.J. agreed) concluded as follows:-
	“The submissions of both Counsel and the law as regards habitual residence were both helpful and comprehensive.  It seems to me, however, that it would be premature for this Court to embark upon a full consideration of the law concerning habitual residence as applied to this case.  It is clear from the text of Article 3 of the Convention that the question of habitual residence must be decided at the point “immediately before the removal or retention”.  This requires the making of a finding of fact by the trial judge as to the date on which the wrongful retention began.  In this particular case, where the Court must make a finding as to the habitual residence of the child, the effect of a finding by the trial judge that the wrongful retention began in January could be different from the effect of a decision that the wrongful retention began in the following July.  The determination by the trial judge of the date of wrongful retention is therefore of great importance.  Related to that finding are a number of other findings of fact and a resolution of the major conflicts of evidence which emerged during the High Court trial.  The trial judge is in a unique position in his ability to resolve such conflicts and make findings of fact (see Hay -v- O’Grady (1992) 1 IR 201).  This Court cannot act as a Court of first instance and is not in a position to make findings of fact, particularly in a case where there has been oral evidence at the trial.  In the absence of the necessary findings of fact and a more detailed explanation of the reasoning which lay behind the learned judges decision that the habitual residence of the child R was England, it would be wrong for this to proceed to an analysis of the application of the relevant law by the trial judge or to decide whether the trial judge had errored in his application of that law.
	This is a Hague Convention case.  Convention cases require to be decided within the shortest possible time frame.  They are given priority in the High Court and also in the list of this Court.  For that reason the Court would be most reluctant to remand these proceedings to the Court below.  I very much share that reluctance.  Nevertheless, given the absence both of findings of essential fact and of analysis of the legal principals applied, it appears to me that this Court has no choice in the circumstances but to return the matter to the High Court.  This will enable the learned trial judge to make the necessary findings of fact and carry out the required analysis in the light of the relevant authority.  The trial judge gave this matter a most careful and thorough  hearing of which there is a full agreed note made by Counsel.  This will be of considerable assistance to him.  
	I have no doubt that this matter, being a Hague Convention case, will be dealt with as a matter of urgency in the High Court.  Should there be any need for a further reference to this Court, Counsel should make a special application so that the Court may ensure a hearing at the earliest date.
	I would allow the appeal and remit the case to the High Court.”
3.2.	Such a reference was made to the Supreme Court  by special application and on the 14th March, 2002 Denham J. held as follows:-
	“This case has required consideration of the Hague Convention on civil aspects of international child abduction, 1980 as incorporated into Irish Law.
	At issue is the date when the father explicitly sought his child’s return to England.  At issue is the determination of the date on which the alleged wrongful retention of R commenced.
	Unfortunately these facts were not determined by the High Court.  This Court is an appellate Court and does not have jurisdiction to make such findings of fact.
	Consequently, the case was remitted to the High Court for the specific findings of fact as set out in the judgment of McGuinness J.  It would appear that it could be shorter and in ease of the parties if the specific findings of fact were made by the trial judge who has already heard the parties.”
3.3.	The President of the High Court requested this Court to make additional findings of fact, if necessary with additional evidence or submissions as might be required by the Court.
3.4.	The Court heard the matter on the 14th and 15th March, 2002.  The parties agreed that the Court should, in addition to finding such facts and applying the legal principals, make a decision as to habitual residence and make any consequential order required by application of the Hague Convention.
	The parties agreed that the evidence already heard would constitute the basis for such findings.  However, they requested making further submissions in relation to the law.
4.	EVIDENCE
4.1.	Some seventeen Affidavits were filed in this matter and further Affidavits filed subsequent to the High Court hearing.  With the agreement of the parties these further Affidavits were not referred to.
	As might be expected in a contentious matter there were several conflicts of evidence in the Affidavits.  It is perhaps better to concentrate on what was agreed and to isolate the material conflicts in relation to the outstanding findings as indicated by the Supreme Court.
4.2.	The following chronology would appear to be agreed: 
	06/03/82 Marriage.
	01/07/82 Birth of son (now aged nineteen).
	- / - /85 Divorce.
	07/05/86 Divorce decree absolute.
	- / - /93 Reconciliation.
	24/06/94 Minor (R.G.) born (now seven and a half).
	10/09/98 Parental responsibility order in respect of Applicant.
	- /02/00 Mother diagnosed with cancer.
	28/04/00 Mother goes to Ireland with Minor with consent of Applicant.
		Mother receives palliative care.
		Minor stays with maternal grandmother.
		Minor visits Applicant in England for some days.
	19/09/00 Mother with Irish address executes standard form will in England.
		Respondent appointed executrix and trustee.
		Respondent appointed testamentary guardian of minor children (sic) after her death.
		Specific legacy of jewellery to Minor.
		Residue to trustee for children at 21; in default to Respondent.
	24/12/00 Mother died: Minor with maternal grandmother.
		Applicant notified of death: does not attend funeral.
	03/01/01 Applicant wrote to Respondent.
	- /01/01 Respondent attended memorial service in England.
	27/01/01 Respondent and her brother meet Applicant in England.
	05/02/01 Applicant advised by English Solicitor.
	- /02/01 Applicant in Ireland and met Minor but not overnight.
	11/07/01 Applicant brought proceedings in English Court. 
		Consent order declaring father had rights of custody.
	13/07/01 Respondent applies ex parte to Irish Circuit Court. 
		Obtains short interim order for custody.
	02/08/01 Irish Passport granted to Minor.
	13/08/01 Hague Convention notice served on Respondent.
5.	CONSENT
5.1.	The issue of consent is critical given the case law which was referred to in the course of extensive submissions.  Moreover, the Applicant’s request for information relating to his former wife’s “wish list for R” which he said he had discussed earlier the previous year with his former wife indicates that the matter of R’s future had been discussed by the Applicant and his former wife.  However, in the several Affidavits sworn by the Applicant, the only reference to R’s future is to an agreement that the period of R’s stay with her mother in Ireland would be temporary - until September, during the first course of treatment, and from September to December.  No reference is made to the “wish list” other than to a request to the Respondent for a copy of the will after his wife's death.
5.2.	The Applicant contends that there was a further discussion with his former wife in August, 2000 as a result of which he agreed that R could remain in Ireland until the course of treatment was completed in January 2001.
5.3.	In NK -v- JK (1994) 3 IR 483, the Plaintiff wife and Defendant husband lived in England with two minor children.  After unhappy differences rose.  It was agreed, through the wife's solicitors, that the children would reside with the husband in Ireland subject to access.  Access was refused and would only be granted by the husband if the wife consented to live with him.  The wife issued proceedings under the Convention seeking an Order directing the return of the children to England.  It was argued that her consent had been obtained by threats.  Morris J. (as he then was) refused the Order on the basis that the consent had been voluntarily given but that the restriction placed on access was a breach of custody.  On the evidence it was held that the Plaintiff wife had acquiesced to the retention of the children in Ireland.  (Contrast IK -v- JK (Unreported, Morris J., 25th February 1998) where consent could not be deemed to have occurred).
	In MD -v- ATD (Unreported, O’Sullivan J.)  by parties residing in England separated.  One month later the Defendant wife brought the children to Ireland for a short holiday.  A further month later the Defendant indicated to the Plaintiff that she wished to reconcile if the parties came to live in Ireland.  On that basis the Plaintiff husband consented to the removal of the children to Ireland.  O’Sullivan J. found that there was nothing in the husband's agreement that was dependent or conditional upon a reconciliation.  Consent was without qualification before there was any discussion on reconciliation.  Those circumstances the Court held that the Plaintiff did give his consent to the removal of all three children to Ireland.
5.4.	The issue of consent is, however, not determinative on its own.  In DB -v- JB (Unreported, Supreme Court, 28th July, 1997) the Supreme Court outlined a check list of eight factors which the trial Judge should have regard in exercising the discretion of the Court.  These are:
	"a. 	The habitual residence of the child at the time of the removal;
	b. 	The law relating to its custody and access in the place of habitual residence;
	c.	 The overall policy of the Convention and its objective to secure protection for rights of access;
	d. 	The need to ensure respect for rights of custody and of access under the law of other contracting States;
	e. 	The circumstances of the child including information relating to the social background of the child;
	f. 	The nature of the consent in question and the circumstances in which it was given;
	g. 	Any relevant litigation in the place of the child's habitual residence, and 
	h. 	Any undertaking(s) given."

	The above factors were considered in MD -v- ATD above.  O’Sullivan J. further considered whether it was appropriate to exercise discretion under Article 13 of the Convention.
	Article 13 provides that the requested State is not bound to order the return of the child if the person who opposes its return establishes that the person having care of the child was not actually exercising the custody rights at the time of removal or retention or it consented to or subsequently acquiesced in the removal or retention or that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
	There was no evidence before this Court of any grave risk.  There is, however, some evidence that the Applicant in the present case was absent for some periods before April, 2000.  There is uncontroverted evidence that for a period of at least eight months from April to January that there was no contact.  It seems to this Court to follow that the Applicant was not actually exercising custody rights up to the time of the alleged wrongful retention.
5.5.	Article 3 provides that the retention of a child is to be considered wrongful where it is either in breach of rights of custody and at the time of the retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal of retention.
	The Applicant cannot rely on the Parental Responsibility Order, the equivalent of a Custody Order within this jurisdiction which, although valid, were not actually exercised, either jointly with the child's mother or the Respondent in these proceedings.
	In this context it is now necessary to examine whether there was wrongful retention.  
	The Respondent says that she was with her sister, the Applicant’s former wife, “for almost twenty four hours a day from the date of diagnosis to the date of death.”  She says that her sister never took phone calls directly.  They were channelled through herself or her mother.  She said that it was not known how long the treatment would last.
	It is common case that the Applicant did not visit either his former wife nor his daughter R during this period.  There is no evidence of any written communication.  However the Minor did visit the Applicant for some days in Summer 2000.

6.	WRONGFUL REMOVAL OR RETENTION
6.1.	Article 3 of the Convention refers to wrongful removal or retention.  There would appear to be no issue in relation to wrongful removal.  The removal was consensual.  What is in issue is whether that consent was for a limited period by reference to the mother's treatment or not.  What is also in issue is the intention of the mother to change her habitual residence.  What is thirdly in issue is whether a change in habitual residence of the mother before her death effected a change in habitual residence of the Minor.
6.2.	The next issue is the date when the father, (the Applicant herein), explicitly sought his child’s return to England.  The Applicant says that that request was made by the letter of the 3rd January, 2001 and in the meeting of the 27th January, 2001.  Counsel for the Applicant suggested that it could have been as early as the date of the death of the minor’s mother on the 24th December, 2000.  Counsel for the Respondent argues that request was not made until 13th August, 2001.
6.3.	The letter of 3rd January, 2001 is as follows: 
	Dear (Respondent)
	Sorry I am not the best communicator at the moment to anyone so I thought it best to write instead of phoning.
	This is a sad time for all those who loved M and we must all find strength to carry on despite loosing her.  I imagine your whole family is finding it all too hard to believe she is no longer with us.  
	I wish I could have paid my last respects to her along side your family but I had no wish to bring further pain to those who choose to see me this way, I have been part of M’s life for twenty years and it wasn’t all bad, we shared mutual love and respect towards each other but we simply did not learn how to live with each other.  M always thought we were sole mates perhaps this is why I now feel so lonely.
	I miss R now more than ever but I know at least she is good in hands, I cannot begin to thank you enough for all that you have done, especially now when I should really be with R, but I have needed time to help myself out of this mess before being reunited with her.  Give her a hug from me.  
	You remember me asking if M had made up a list wish for R, M and I had discussed this earlier last year and she said she would if it looked like it would go the way it has, you suggested she may have put these wishes into a will, could you let me know please.
	When you feel you are ready, call me, write to me or e-mail me so we can start picking up the pieces and reunite Dad and daughter.  I am sending R’s Xmas presents to your mums, I have not sent all of them as the post is expensive.  My e-mail address is ....
	Regards to (Respondent’s husband)
	With much love and respect to you all.
	PG.
6.4.	Both parties made submissions in relation to this letter.  For the Applicant it was said that, even if it were not a request for the child’s return, it was a preliminary letter to the request on a meeting on the 27th January, 2001.  
	Having considered the matter carefully it seems to me, on the plain interpretation of this sad letter, that it does not amount to anything more but a realisation of the Applicant’s obligation to be with his daughter and his realisation that he needed time to help himself out of “this mess” before being reunited with her.
	The Applicant contends that his former wife travelled to England from time to time on a regular basis between April, 2000 onwards.  His evidence, however, relates only to one occasion where he had knowledge of his former wife being in England.  That refers, significantly, to her visit on the 19th September, 2000 when she executed her last will and testament.  There is no evidence that the Applicant met or sought to meet his wife on that or any other occasion since April, 2000.  
	The Respondent’s evidence in this regard must be preferred.
	It seems to me, and I so find, that on the balance of probability, there is insufficient evidence to support a limited consent to September, 2000 and an extension of consent beyond that date.
6.5.	In relation to the meeting on the 27th January, 2001 where the Applicant says he requested and was refused taking his daughter back to England, the Respondent (Affidavit of the 15/11/01) averred that, despite being invited to do so, he did not discuss the matter.  Moreover when the Applicant travelled to Ireland in April 2001, she avers, he refused to talk about the Minor’s welfare and her future.
6.6.	The Respondent’s brother’s Affidavit of the 19/09/01 says that from January, 2001 the Applicant was aware of his former wife’s wishes regarding the Minor that she should remain in Ireland with the Respondent.  In relation to the April meeting that Deponent says that the Applicant did not request that the Minor returned to England nor did he have any objection to her living with the Respondent.  Indeed, that deponent, who was on friendly terms with the Applicant, says that since April, 2001 he had a number of phone conversations with the Applicant who never mentioned the Minor to him.  These conversations, he avers, related to the minor’s elder brother, who was then aged eighteen and undergoing some difficulties.
	The Respondent’s brother said that he was astonished when the Applicant made the Application to the English Courts in July of 2001.
7.	DATE OF REQUEST OF RETURN OF MINOR
7.1.	It is unclear from the evidence of the Applicant if and, if so, when he asked the Respondent to return the Minor.  One might have expected such request to have been made at the time of the application for custody in the English Court.
	At the time of those proceedings dated the 11th July, 2001 where the Respondent was represented and where a consent order was made in relation to custody in favour of the Applicant, the Court might imply a request to have the Minor returned to England.  However, there is no evidence of such request.
	It is a curious feature of this case that, though the Applicant was represented by a Solicitor and Counsel, no formal communication of any kind was sent to the Respondent making such request.  One would have expected a Solicitor’s letter, given that there were Court proceedings rather than proceedings through the contracting authority under the Hague Convention.  
	I find that no request was made until the said service which date is not referred to in any of the Affidavits nor in the agreed note of evidence at the trial.  But in any event is not before the 11th July, 2001 and, more probably, on 13th August, 2001, the date of the service of the Notice under the Hague Convention.
	While the former date is the earliest date on which the alleged wrongful retention of the Minor commenced, I find that formal request for the purpose of the Convention was on 13th August, 2001.
		I find no evidence to support the contention that a request was made on the 27th February or of any request prior to the service of the aforesaid pleadings.

8.	HABITUAL RESIDENCE OF MINOR
8.1.	Given that finding the Court must determine whether or not the Minor was habitually resident in Ireland on 13th August, 2001.
	Considerable judicial attention has been given to the term “habitual residence”.  Laffoy J. in her decision in ZS -v- ST (Unreported, High Court, 26th August, 1996) held that the determination of a place of a child’s habitual residence is a question of fact and is “not to be treated as a term of art with some special meaning”.  Words are to be given their “ordinary meaning”.  
	The issue was dealt with extensively in the judgment of McGuinness J. for the Supreme Court in CM -v- Delegacion de Malaga (1999) 2 IR 363 at 381.   
	In CM -v- Delegacion de Malaga (1999) 2 IR 363 at 381 the issue of habitual residence was dealt with in this jurisdiction.
	Having considered the various authorities McGuinness J. held:-
	“It seems to me to be settled law in both England and Ireland that “habitual residence” is not a term of art, but a matter of fact, to be decided on the evidence in this particular case.  It is generally accepted that where a child is residing in the lawful custody of its parent (in the instant case the mother) its habitual residence will be that of the parent.  However, the habitual residence of the child is not governed by the same rigid rules of dependency as apply under the laws of domicile and the actual facts of the case must always be taken into account.  Finally, a person, whether a child or an adult must, for at least some reasonable period of time, be actually present in a country before he or she can be held to be habitually resident there”.
8.2.	The Applicant submits that the Minor came into this jurisdiction not for a settled purpose but because of a special exigency which arose, namely the treatment of the illness of her mother.  The Respondent, the Applicant says, never had parental responsibility for the Minor.  The death of the Minor’s mother could not give rise to a change in the child's habitual residence.  
8.3.	The concept of parental responsibility denotes duties towards a child.  Parental duties were undertaken by the mother and grandmother up to the time of the mother’s death on Christmas Eve 2000 and continued by the grandmother and Respondent from 24th December, 2000 to date.
	The Minor has been in this jurisdiction from 28th April, 2000 to date, that is for a period of fifteen and a half months to the date of request. 
8.4.	There was evidence given by the Applicant of the existence of an arrangement between the parents with regard to what would happen after the mother’s death.  However, no details were given by the Applicant of the nature of such arrangement. 	
8.5.	If there had been an agreement between the parties that, on the mother’s death, that the daughter should return then the Applicant should have averred to this.  On the other hand, if the mother's wishes were that the daughter should remain then, equally, the Applicant should have said so.  In fact there is no averment as to the mother's intentions.  Evidence was given, of a hearsay nature, by some of the mother’s friends of the intentions of the mother in this regard.  The Court cannot, of course, rely on such evidence to rebut evidence given by the Applicant.  In the absence of that relevant evidence to the contrary intention the Court must incline towards a change in habitual residence of the mother and, through her, daughter.
8.6.	The Applicant had been divorced from the mother in 1985 before the Minor’s birth.  It is clear that, for some significant periods, the Applicant was absent even after the Applicant resumed a relationship with the mother after the divorce.
	While this absence, on its own, cannot deprive the Applicant of rights under the Hague Convention, it does provide some evidence in respect of the intention of mother of having reasons to permanently change her habitual residence.
	It is also of considerable significance that the Applicant did not visit his daughter (nor his wife) from the 28th April, 2000 when mother and daughter went to Ireland until February, 2001 over a month after the mother died on Christmas eve of 2000.  The Minor did visit the Applicant in England for some days during Summertime of 2000.
8.7.	Against that the Applicant had submitted that the mother retained and did not dispose of her English property and visited England to make her will on the 19th September, 2000.  The property, in fact, consisted of personal property the extent of which was not disclosed to the Court and the residence was rented without, as I understand it, any rent being paid subsequent to her departure.
	Insofar as the will is concerned the address given is a Dublin address appointing the Respondent to be the testamentary guardian of her minor children after her death.  All her property was left to the Respondent in trust for her children.
8.8.	It does seem to me that the rights of custody obtained by the Applicant on the 20th September, 1998 following the divorce of the Applicant and the Minor’s mother, insofar as it has any application in this jurisdiction, does not alter the position regarding habitual residence.
	Whatever temporary the purpose of coming to this jurisdiction was in April, 2000 it is clear that the intention of the mother at the time of executing her will on 19th September, 2000 was that the Respondent would be the testamentary guardian of her daughter after her death.  I do not believe that by making her will in England that she intended her residence to be in that jurisdiction; the Dublin address is evidence to the contrary.  Her will was in standard form filled in by her without, one assumes, any legal advice.
	I find that her intention as of September, 2000 was to remain habitually resident in this jurisdiction.
9.	DECISION
	The underlying purpose of the Convention is to ensure stability for children.  The welfare of the child must be regarded as the first impairment consideration (CAS -v- EH and RMH (Unreported High Court decision of Budd J., May, 1966).
9.2.	The Applicant, in the first instance must establish that he enjoyed and actually exercised “rights of custody” - the parental responsibility in the United Kingdom, immediately prior to the removal or retention.
9.3.	The formal request for the purpose of the Convention was on the 13th August, 2001 which was over 15 months after the mother and the child went to Ireland.  
	The evidence of the Respondent is to that effect that the child now aged 7½ is now settled in its new environment.  Accordingly, even if the issue of consent and actual exercise of custody rights were not as the Court has found, the Court would have to take that uncontroverted evidence into account.
	That it not to say that the second paragraph of Article 12 of the Convention applies as the Application was made at the time it was alleged that the wrongful retention began.
9.4.	The Court finds that there was at least acquiescence in the mother and child going to Ireland in April, 2000.  There was evidence from the Applicant that consent was given but that this was for the purpose of treatment.  There was no corroboration.  There was no written, nor indeed other communication given in evidence.  Contrary evidence was, in the circumstances of the mother's death, necessarily of a hearsay nature.
9.5.	The mother was exercising rights of custody over the child.  That custody was shared with the grandmother and the Respondent.  The mother in exercising rights of custody, was entitled to determine the child's place of residence.
9.6.	In view of the checklist outlined in DB -v- JB (Unreported, Supreme Court, 28th July, 1997) referred to above and to the above findings of fact which had not been determined in the previous hearing I must refuse this Application.  I do so with some reluctance given that the Applicant is the father of the child.  For this reason however it seems to me appropriate to consider the question of access of the Applicant to the child.