The High Court refused a father’s request for the return of his young son to Poland under the Hague Convention, finding that the child had been wrongfully removed but was well settled in Ireland by the time proceedings began.
In a judgment delivered on 10 February 2017, Ms Justice Ní Raifeartaigh said the child had lived in Poland for about two years before his mother brought him to Ireland in October 2014. The father had custody rights under Polish law and was exercising them when the child was taken, the judge found.
The mother argued that the father had consented to the move, relying in part on Facebook messages sent in September 2014 and a travel document he had signed. The judge found that the messages, without further context, did not establish clear and unequivocal consent. She also said the mother’s removal of the child from his crèche on the pretext of a medical appointment, followed by a text saying she was far away, was inconsistent with a belief that the father had agreed to the move. The removal was therefore wrongful under the Convention.
The father began proceedings in Ireland in October 2016, more than two years after the removal. Under the Convention, a return order is not required where proceedings start more than a year after removal and the child is shown to be settled in the new environment. The judge accepted evidence from the mother and a preschool employee that the child was happy, had formed friendships, spoke English with other children and expected to start school with them. She found that he was well settled in Ireland when proceedings began.
The father argued that the court should still order a return, saying the delay stemmed from administrative problems. The judge found significant periods of unexplained delay, including between a return request made in February 2015 and a lawyer’s inquiry in November 2015, and between documents sent in January 2016 and the Irish proceedings in October 2016. She was not satisfied that all the delay was attributable to administrative error. Given the time that had passed and the child’s settlement, she exercised her discretion against a return to Poland.
The judge rejected the mother’s claim that return would expose the child to a grave risk of harm, saying the high legal threshold was not met. She also found that the father had not acquiesced in the child’s retention in Ireland: his application remained live despite its slow progress.
The ruling concerned only whether the child should be returned to Poland under the Convention. It did not decide custody or access, which the judgment said remained subject to the applicable provisions of Brussels II bis.