Sunday 19 November 2017

High Court's finding of child's 'habitual residence' following France divorce correct, Supreme Court ruled

The divorce was granted in France (Getty)
The divorce was granted in France (Getty)

Tim Healy

The High Court was correct in finding the "habitual residence" of a child was Ireland arising out of contentious divorce proceedings between the parents in France, the Supreme Court ruled.

The father disputed the High Court decision arguing the right of residence with the mother was only provisionally given in 2012 to his ex-wife by a French divorce court.  A year later he won an appeal in France giving right of residence to him by which time the child was living in Ireland with the mother.

The divorce was granted in France by a Tribunal de Grande Instance in April, 2012 with joint parental custody and it also ordered the child, then just under four years of age,  would live with the mother.

The tribunal also said the mother was entitled to set up residence in Ireland, where the maternal grandparents lived.  That order was enforceable as a right on a provisional basis, the tribunal said.

The father, who is French, won his appeal against the divorce court decision in March 2013 and obtained an order that the child live with him in France.

He brought further proceedings in France in which a court gave him exclusive parental authority.  He also successfully brought a High Court case here seeking to have that order enforced in compliance with EU rules on the cross-border enforcement of judgments.

The mother obtained a stay on the High Court enforcement decision and also challenged the French appeal court order, which is still pending.

In separate proceedings, the father asked the High Court to order the mother wrongfully retained the child in Ireland.

In August 2013,  Ms Justice Iseult O'Malley ruled against him concluding the child's habitual residence was not conditional on the fact that the father had brought an appeal against the divorce court order.  The issue she had to deal with was essentially a question of fact since there was nothing to prevent a change of habitual residence.

The mother brought the child here with the intention of settling before the French appeal court determined habitual residence was France, Ms Justice O'Malley said.

In his Supreme Court appeal against Judge O'Malley's decision, the father argued the original divorce court ruling on the child's residence was only provisionally enforceable and was, in effect, temporary while his eventually successful appeal in France was pending.   His ex-wife had also not told the French courts she intended to maintain custody in Ireland, he argued.

The mother argued the High Court was correct in concluding habitual residence had changed after the child had been brought to Ireland and this was in accordance with the original divorce judgment.

The Supreme Court asked the European Court of Justice (ECJ) to make a preliminary ruling on the issue of habitual residence.

The ECJ found that under an EU rule on cross-border enforcement of judgments (Brussels II regulation) the Irish courts were entitled to determine habitual residence.

Giving the three judge Supreme Court 's Friday (Feb 6), unanimous decision, Mr Justice John MacMenamin agreed the High Court was correct.

Mr Justice MacMenamin said he considered the decision of Mr Justice O'Malley was correct on a legal and factual basis as well as in the light of the ECJ ruling on habitual residence.

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