About this case:

• Citation:
  [2022] IEHC 515
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Mary Rose Gearty

Delivering judgment in the case, Ms Justice Mary Rose Gearty held that the mother did not have permission to take the child from the jurisdiction despite a Polish court ordering that the mother’s habitual residence would also be the child’s habitual residence. Further, the court held that the best interests of the child were served by remaining in Poland despite the child objecting to being returned.

Background

The applicant (father) and the respondent (mother) were married in 2012 in Poland. Their daughter, known as Paula, was also born in 2012. The applicant and respondent separated in 2020 and divorce proceedings were initiated in Poland. The respondent claimed that the applicant was physically abusive towards her.

Between late 2020 and August 2021, the applicant had access to his daughter under the supervision of a court-appointed guardian. There was some dispute about how often this access occurred, but at a minimum it was every three weeks.

In August 2021, the respondent wrote to the Polish Court, stating that she was in a difficult financial situation and was moving to Ireland to provide for her children (she also had an older child from a previous relationship). She provided a contact address and, three days later, moved with Paula to Ireland without the consent of the applicant. The older child remained in Poland.

The applicant contacted the respondent in early September 2021, stating that this was the first time he learned that Paula was removed from Poland. He made a written request to the Central Authority of Poland pursuant to the Hague Convention in late September 2021.

In December 2021, on foot of an application by the respondent, the Polish court determined that Paula’s place of residence would be “any place of the residence of her mother” until the conclusion of the divorce proceedings.

Subsequently, the applicant brought an application in Ireland for the return of the child to Poland. The respondent claimed that she was entitled to take the child from Poland on foot of the interim order for habitual residence which was approved by the Polish court. Further, it was submitted that the applicant had not proven that he was exercising custody rights in respect of Paula. The defence of grave risk to the child was also raised on the basis of previous allegations of violence against the respondent.

Finally, it was also submitted that the views of the child were such that the court should exercise its discretion to refuse to return Paula to Poland. In an interview with a clinical psychologist, Paula described her wish to remain with her mother and that she did not want to live in Poland with her father. She stated that she had seen her father hitting her mother and that she would only visit if he was good to her mother.

High Court

Ms Justice Gearty began her assessment by outlining the basic elements of Hague Convention applications. It was held that the courts must take a liberal view of whether a parent was exercising custody rights, with the focus of an inquiry being whether the parent sought to have a relationship with the child. As such, an applicant failing to make financial assistance was not determinative of custody rights and access (N.J. v. E. O’D [2018] IEHC 662). In this case, even if the level of contact with Paula was low, the applicant had shown that he was exercising custody rights at the time of her removal.

On the issue of the grave risk defence, it was held that a court must consider whether the allegations (if true) justified a decision not to return the child. Taking the respondent’s allegations at their height, it was noted that a risk of violence was to the respondent and not to Paula. It was held that the evidence was insufficient to establish that a risk existed and that the Polish courts were in a better position to assess any risk that might arise.

Further, the Polish authorities were in a good position to protect Paula, if such a risk arose. It was already determined that Paula would live with the respondent and that the applicant would have supervised access. The applicant had also undertaken to provide funds to house the respondent and Paula pending the divorce proceedings.

Next, the court considered whether the respondent had permission from the Polish Court to remove Paula to Ireland. The court considered the affidavit of a Polish legal expert, who noted that “place of residence” signified a town or city within Poland rather than a country. As such, it was said that the December 2021 order did not allow the removal of the child to Ireland.

The court also observed that the Polish court was not specifically advised of the change of residence of Paula when contacted by the respondent in August 2021. Given the interim nature of the December 2021 order, it was unlikely that the Polish court permitted Paula to move to Ireland, with the expert noting that it could have been understood that Paula would remain with family in Poland.

Finally, the court considered the views of the child. It was held that an objection to return must be to the State of habitual residence rather than to living with a particular parent. However, these issues may be inexorably linked (M.S. v. A.R. [2019] IESC 10). A refusal to return was an exception, rather than the rule, the court held.

It was held that Paula had sufficient maturity to express a clear objection to returning to Poland that went beyond simply living with her mother. However, the views were moderately expressed and strongly linked to staying with the mother. As such, the court attached a limited weight to these views.

It was noted that Paula had lived a happy life in Ireland for a year, which meant that the case did not involve a quick, summary return but did also not involve serious delay (see D.M. v V.K. [2022] IECA 207). The court concluded that Paula’s objection did not outweigh the policy considerations of the Hague Convention to vindicate parental rights or the child’s best interests.

Conclusion

In light of the court’s analysis, the court granted the application. There was no evidence of grave risk to Paula and there was no court permission to take Paula to Ireland. As a Polish child fluent in the language, her best interests were served in Poland.

It was held that the court would consider a short stay on the order returning Paula to Poland if an application to relocate Paula could be brought before the Polish courts within a matter of weeks (see D.M v. V.K.).

J.T.S. v. M.K.S. [2022] IEHC 515