The High Court refused a mother’s application for an order returning her two sons to Poland, despite finding that their father had wrongfully removed them from Poland in December 2010. The court exercised its discretion under the child-objection exception in the Hague Convention. It did not decide the merits of custody.
The boys had lived with their mother in Poland until June 2008, when she agreed they could holiday with their father in Dublin. He did not return them as agreed. That retention was admitted to be wrongful. The mother began return proceedings in Ireland in May 2011, more than a year after the 2008 retention.
The father took the boys to Poland for Christmas in 2010 and brought them back to Ireland without their mother’s consent. He disputed that this was a wrongful removal, arguing that the boys had by then become habitually resident in Ireland. The judge found he had not established that their mother had acquiesced to them living in Ireland, and that they remained habitually resident in Poland. Their removal therefore breached the mother’s custody rights.
Because the Irish proceedings began within a year of the December 2010 removal, the court considered whether an exception to return applied. Following interviews conducted by a child psychologist, the judge accepted that both boys objected to returning to Poland and were sufficiently mature for their views to be considered. Their objections focused mainly on staying with their father and his partner in Ireland. The judge noted that the boys would have been willing to return if their father and his partner moved there too.
In deciding whether to order their return, the judge considered the time the boys had spent in Ireland, their attachments to their current family unit and the impact of a summary return. The psychologist’s report also raised concern that little effort had been made to preserve the boys’ relationship with their mother and that they had been given a negative impression of her. The judge said longer-term arrangements for care and contact belonged to the courts with custody jurisdiction.
The Polish court had ruled in February 2012 that the boys’ parental care should be entrusted to their father, while restricting the mother’s parental care. The mother had appealed. The High Court considered that the Polish court had not required the boys to return for the appeal and declined to order their return for that purpose.
The court ordered that its judgment and specified case materials be sent to the Polish Central Authority and the relevant District Court. It also permitted the parties to disclose those documents to their Polish lawyers. The Polish courts retained jurisdiction over care and custody; a later Polish judgment requiring the boys’ return could be enforceable in Ireland under the EU Regulation.