The High Court has refused an application to dismiss or strike out a father’s proceedings seeking the return of his daughter to Poland, leaving the central question of whether her removal was wrongful for determination at a later hearing.
Ms Justice Finlay Geoghegan delivered the judgment on 2 May 2012. The mother had applied to end the proceedings based on a January 2012 decision of a Polish district court, which rejected the father’s request to change the child’s place of residence from the mother’s to his.
The parents had divorced in Poland in 2008. The translated divorce order gave both parents custody and stated that the child’s place of residence would be wherever the mother lived. A 2010 Polish order gave the father specified periods of contact. The mother later signed a document stating that the father would have total parental care while she was abroad for work from June to September 2011; the judgment records a dispute over whether the child lived with him or her maternal grandmother during that period.
The mother brought the child to Ireland in October 2011. The father said he had not known of or consented to the move and that it breached his custody rights. The mother said he knew the child was travelling with her and argued separately that the 2008 residence provision entitled her to move without his consent. The High Court noted that the parents did not dispute the child had been habitually resident in Poland or that the father held and exercised custody rights at the time. They disputed whether his consent was legally required.
The mother argued that the Polish court’s decision, made with awareness that the child was living in Ireland, meant the Irish case should end. But the High Court said the Polish court had considered whether the child’s best interests justified changing her residence, and had found the father had not supplied evidence supporting such a change. It had not decided whether the move to Ireland breached any rights the father held under Polish law.
The Irish court said that issue required evidence from an appropriately qualified independent Polish lawyer. The father’s claim for a return order under Article 12 of the Hague Convention depends first on whether the move was wrongful under Article 3. The Polish decision could still be relevant at the full hearing and was not determinative of any defence the mother might raise under Article 13.
The court also considered the relevant EU regulation and concluded that the Polish courts had not lost jurisdiction on the basis argued, because the child had not lived in Ireland for the required year. It refused the mother’s application at this stage, while leaving the return application unresolved. The judge said she would hear the parties on directions to progress the case as quickly as possible.