The High Court dismissed a father’s application to return his young son to Poland, finding that an order for the child’s return would expose him to a grave risk of physical and psychological harm in the circumstances then before the court.
Mr Justice Garrett Simons delivered the judgment electronically on 14 May 2020. The application was made under the Child Abduction and Enforcement of Custody Orders Act 1991 and the Hague Convention. The judgment uses “Jan” to protect the child’s identity.
The father alleged that the mother wrongfully brought Jan from Poland to Ireland on 8 December 2018. The mother had disputed that the removal was wrongful, arguing that Polish court orders gave her the right to decide where the child lived. After obtaining an independent opinion on Polish law, the court proceeded on the basis that the removal was wrongful and that the Hague Convention’s return criteria were met. The judgment did not resolve the application on the basis of a separate finding about the threshold issue.
The court’s decision turned on the grave-risk defence under Article 13(b). It considered the risks of international travel during the coronavirus pandemic, noting government advice against unnecessary travel and the lack of evidence about available flights or travel restrictions. The mother’s doctor had advised against travel. The judge said an order could force her to choose between travelling despite risks to her health or leaving Jan to travel without his primary carer.
A clinical psychologist’s report described Jan as strongly attached to his mother and her husband, and said he had no current relationship with his father, who had not cared for him for nearly two years. The report warned that a return in his father’s sole care could have serious emotional consequences. The judge also considered the disruption of uprooting a child who had lived in Ireland for 18 months, while noting that most of the delay in the proceedings arose from external factors, including legal-aid timing, obtaining an updated report and the pandemic.
The court concluded that the Article 13(b) defence was established and exercised its discretion to refuse return. It said the unusual combination of circumstances meant the decision would not undermine the Convention’s policy of deterring abduction. The judge did not need to decide the mother’s alternative argument based on the child’s best interests.
The court separately considered whether Jan objected to returning. The updated report recorded no view from him on returning to Poland, so the judge found that the first step of the child-objection test was not met and attached no weight to that issue. The application was dismissed. The judgment left any costs issue open for short written submissions within 14 days if either party sought a costs order.