The High Court found that two children were wrongfully removed from Poland, which it held was their country of habitual residence when they were taken to Ireland in January 2017. It did not make a final return order at that hearing, seeking information about the likely course of custody proceedings in Poland first.
Mr Justice McDermott’s judgment, delivered on 29 January 2018, concerned an application under the Hague Convention. The children’s father sought their return to Poland after their mother brought them to Ireland. The court found that the mother had agreed in November 2015 to their move from Ireland to Poland as a permanent one. It concluded that the children’s habitual residence had changed to Poland before their later removal.
The parents disagreed about the original agreement. The mother said she had consented only to a temporary stay while she established more secure employment in Ireland. The father said she agreed the children would live permanently with him in Poland. A Polish court had earlier rejected the mother’s Hague Convention application to return the children to Ireland, finding that she had consented to their long-term move. Her appeal was dismissed in March 2017.
The Irish High Court considered the children’s time in Poland, their schooling, language, family connections and the circumstances of their move. It found that the father had been exercising custody rights and that the mother’s removal of the children breached the Polish courts’ custody rights while proceedings there were pending.
The mother argued that return would expose the children to grave risk of physical or psychological harm, relying in part on a protection order and allegations about the father. The judge said the evidence did not meet the high threshold required to refuse return. He noted that the Polish courts could address welfare and custody issues, and that relevant evidence was available there.
The court also considered the older child’s objection to returning to Poland. A.S., aged seven at interview, said he wanted to live in Ireland with his mother and sister. The judge found him sufficiently mature for his views to be considered, but concluded that the objection did not change the outcome in the circumstances.
The judgment concluded that the children had been wrongfully removed and that return had not been shown to pose a grave risk or create an intolerable situation. Because they had been in Ireland since January 2017 and the judge sought to minimise further disruption, he asked for information on whether and when the Polish custody proceedings would resume before finalising an order under Article 12 of the Convention.