Multi-Factorial Habitual Residence Test for Young Children Under the Hague Convention

Introduction

J.G. v M.P. ([2025] IEHC 282) is a High Court family law decision addressing a return-of-child application under the 1980 Hague Convention on International Child Abduction and the Irish Child Abduction and Enforcement of Custody Orders Act 1991. The applicant father, a Brazilian national, sought return of his young son, born in Ireland in 2019, after the mother, an Irish citizen, refused to return with the child from a visit to Ireland in May 2024. The central issue was whether the child had a settled habitual residence first in Brazil (where the family lived from September 2022 to January 2024) and, if so, whether that residence shifted back to Ireland before wrongful retention.

Summary of the Judgment

The court found on the primary analysis that the child never acquired habitual residence in Brazil: his pre-existing Irish residence remained intact.
Alternatively, assuming Brazilian habitual residence, the child reacquired Irish habitual residence during his January–May 2024 stay.
As a result, the return application was refused under Article 12 of the Hague Convention.
Defences of consent/acquiescence and grave risk under Article 13 were considered but not established.

Analysis

1. Precedents Cited

A.K. v. U.S. [2022] IECA 65 – Reiterates summary nature of Convention proceedings; emphasizes "practical connection" (proximity) and child's integration over a “see-saw” concept of habitual residence.
Hampshire County Council v. CE & NE [2020] IECA 100 – Sets out a non-exhaustive multi-factorial test: duration, stability, family/social integration, linguistic and educational ties, parental intention as one factor.
J.V. v. Q.I. [2020] IECA 302 – Affirms peremptory and summary character of Hague applications and cautions against deep factual inquiry without cross-examination.
P.F. v. C.R. [2017] IEHC 489 and D.E. v. E.B. [2015] IECA 104 – Clarify importance of parental consent/acquiescence and implementation of parental decisions in shifting habitual residence.
R.K. v. J.K. [2000] 2 I.R. 416 and R. v. R. [2015] IECA 265 – Define high threshold for “clear and compelling evidence” in grave risk defences.

2. Legal Reasoning

Mr. Justice Barry O’Donnell applied a two-step enquiry:

Primary Inquiry: Did the child’s habitual residence shift from Ireland to Brazil?
- Despite a planned move and some family ties in Brazil, the child (preschool age) did not integrate socially or linguistically; his mother’s isolation and intent to return reinforced that Irish residence persisted.
Alternative Inquiry: Assuming Brazilian habitual residence, did the child reacquire Irish habitual residence by May 2024?
- The child quickly re-integrated: back with maternal family, attending preschool, English-speaking, local medical registration, extracurricular activities and the mother’s settled intention to remain.

The judge highlighted that for young children the “proximity” test focuses on the primary carer’s environment. Parental intention is a factor, not determinative. The refusal of one parent to consent to relocation is a relevant but not conclusive factor. Article 13 defences (consent/acquiescence, grave risk) failed for lack of clear, compelling evidence.

3. Impact

This judgment:

Reaffirms the multifaceted, child-focused test for habitual residence under the Hague Convention in Irish law.
Clarifies the weight of parental dissent: non-consent is a factor, not an overriding bar to a change of habitual residence.
Emphasizes the primary carer’s social/family integration as central for young children.
Serves as a guide for practitioners in preparing succinct, focused Hague applications on habitual residence.

Complex Concepts Simplified

Habitual Residence: Where a child’s “stable home for the time being” is, judged by integration in family, social life, schooling or creche, and community ties; it can change as roots shift.
See-Saw Analogy: As a child integrates in a new country (new roots deepen), the old roots weaken, balancing like a see-saw.
Proximity: The “practical connection” to a country: for infants, proximity is shaped by the primary carer’s environment.
Article 13 Defences: Consent/acquiescence requires unequivocal proof; grave risk needs “clear and compelling” evidence of harm that local courts cannot mitigate.

Conclusion

J.G. v M.P. cements Ireland’s application of a multi-factorial, child-centred habitual residence test under the Hague Convention, especially for young children. It underscores that:

Habitual residence depends on integration and stability, not merely parental intention.
Primary carer’s environment is pivotal in the proximity analysis for infants.
Parental refusal to consent to relocation is a significant but non-decisive factor.

This decision will guide future cross-border child abduction cases, ensuring courts focus on where children’s real-life connections lie and applying defences under the Convention narrowly.