International child abduction disputes in Ireland are on the rise, and are likely to increase in the coming years. In many cases after marital or relationship breakdown, a child is removed in breach of rights of custody and taken out of the country in which the child has lived and been brought up. In most cases this is by one of the parents. Applications under the Hague Convention can be made in order to return the child to the country of origin in order that matters relating to custody and access can be determined.

The concept of ‘habitual residence’ influences how these judgments are determined. However, the Convention does not define specifically what criteria determine habitual residence. The European Courts of Justice approach it as being the social and family environment in which the child has grown up and with which they are most familiar – it is often the place to which they are emotionally bound. This is usually determined by parental statements and other relevant facts such as the amount of time the child spent in a particular place.

However, a recent judgment by the Supreme Court in the United Kingdom, LC (Children) [2013] EWCA Civ 1058 has thrown light on whether the child’s views should play a part in this decision making process. In that particular case, an adolescent child refused to leave England after visiting her father in December 2012. She wanted to remain with him in England but the mother applied for her and her siblings to be returned to Spain under the provisions of the Hague Convention. Following an appeal to the Supreme Court, a unanimous ruling was made ordering that the case be remitted back to the original Family Division court because the original judge had failed to give sufficient weight to the length of time the eldest child had spent in England and her objections to returning to Spain. It is the first judgment of its kind in the UK, and may or may not be followed here in Ireland. If a child is of an age and ability to be capable of contributing information of weight and relevance to the judicial decision making process, they should be able to do so, the Court found. Furthermore, given that there is a perceived judicial bias in favour of mothers being granted custody over fathers, this recent ruling has significant implications for fathers in cases where abduction or other factors relevant to the provisions of the Hague Convention occurs.