The High Court refused an application to return a 15-year-old girl to Poland under the Hague Convention, concluding that a summary return to her mother’s care would pose a grave risk of placing her in an intolerable situation if allegations made by the girl were true. The court stressed that it had not determined whether the alleged conduct occurred and that its decision did not decide custody.
The judgment, delivered by Ms Justice Finlay Geoghegan on 7 February 2012, concerned a girl identified in the judgment by the pseudonym Anna. Her mother sought her return after her father brought her from Poland to Ireland in July 2011 without the mother’s consent. The parents’ Polish divorce decree gave the mother parental power and the father a right to participate in important decisions about their daughter.
The father said the girl wanted to leave and alleged that she had been mistreated by her mother and maternal grandmother. The mother disputed his account, saying the departure had been planned in advance and that the girl was under pressure from her father and adult half-sister. Those allegations were not resolved at the hearing.
A court-appointed assessment by Dr Anne Byrne-Lynch reported that the girl objected to returning to Poland because she understood that would mean returning to her mother’s care. The psychologist considered her capable of forming and expressing her own views, with maturity close to or perhaps a year below her age. The judge found her age and maturity made it appropriate to take account of her objections.
The judge also held that, if the girl’s allegations about her mother’s behaviour were true, an immediate return to her mother’s care would place her in an intolerable situation. The court had no evidence that protective arrangements had been made for her in Poland. It therefore accepted the father’s defence under Article 13(b) of the Convention. The court separately found that the father’s taking the girl out of Poland was a wrongful removal, even if she had willingly participated in or instigated it.
In exercising its discretion, the judge weighed the Convention’s aim of having custody decided in the child’s country of habitual residence against the girl’s objections, the risk identified in the absence of protective measures, her assessed maturity and the breakdown of trust between mother and daughter. The court refused the summary return application, but said the decision was not a determination of custody. It directed that the judgment, order, psychologist’s report and hearing transcript be sent through the Central Authorities to the relevant Polish court, which could examine custody and conduct a full welfare inquiry. A Polish order requiring the girl’s return could be enforceable in Ireland under the applicable EU regulation.