The High Court has declared that a mother wrongfully removed her son from Poland to Ireland and ordered his return to Poland under the Hague Convention on International Child Abduction.
In a judgment delivered on 13 June 2008, Mr Justice John MacMenamin found that the child’s habitual residence was Poland and that his maternal grandfather held custody rights when the mother brought him to Ireland in September 2006. The grandfather had sought the declaration and return order. The court said the mother’s counsel ultimately conceded that the grandfather had custody rights and had exercised them.
Polish court orders had placed the child in the grandfather’s foster care. The High Court found that the mother left Poland with the child shortly after a further custody order was made, without notifying the Polish court of her whereabouts. The judgment records that the child and his mother travelled to Ireland by way of London and were later found living in Cork.
The court considered the child’s objection to returning, whether he had settled in Ireland, and whether return would expose him to grave risk of psychological harm or an intolerable situation. A psychologist’s report described the child’s strong wish to remain with his mother and his progress at school in Ireland. The judge gave weight to the child’s views but found that his age, maturity and reasons for objecting did not justify refusing return. The court also found insufficient evidence that he had become settled in Ireland and cited concealment of the mother’s whereabouts.
The mother argued that return could separate the child from her and raised concern about a European arrest warrant issued against her in Poland. The court said the warrant’s implementation, possible effects and timing were unclear, but found no evidence of impropriety by Polish prosecuting or judicial authorities. It held that the evidence did not establish the high threshold for the grave-risk defence. The grandfather had undertaken not to enforce his custody order pending a full welfare hearing in Poland and not to initiate a prosecution, while the court noted he could not control Polish prosecution authorities.
The court concluded that the child’s long-term care and welfare should be considered by the Polish courts, which it said were best placed to address those issues. It granted the requested wrongful-removal declaration and return order. The judge said counsel would be heard on any ancillary issues; the judgment does not specify a return date or further arrangements.