The High Court has rejected a mother’s interim challenge to its jurisdiction to review a Polish court’s decision not to return her son to Ireland. The court ruled that an earlier Irish District Court custody order did not prevent it from hearing the Article 11 application. It did not decide whether the child should return to Ireland or where he should live.
The judgment, delivered by Ms Justice Mary Rose Gearty on 12 April 2021, concerns a boy identified as W, born in 2010. His father began Irish guardianship proceedings in 2016. The first listing in January 2017 produced no order, and no further step was taken then. The mother took W to Poland in April 2017.
The father began Hague Convention proceedings in Poland in December 2017. He re-entered his guardianship application in the Dublin District Court the following month. In February 2018, that court granted him guardianship and gave the mother primary care and control. The Polish court initially refused return on the basis that the father had not established custody rights. On appeal, a regional court accepted that he had such rights but upheld non-return on the ground that the mother had shown a grave risk of harm if W returned to his father.
The mother argued that the District Court order had already resolved custody and that the father could not rely on that order to establish custody rights while also pursuing a High Court review. The High Court found that the earlier order did not oust its jurisdiction under Article 11 of the EU Regulation. It concluded that the relevant Article 10 provision on transfer of jurisdiction concerned a custody decision made after a non-return order in the Article 11 process, not the earlier District Court order. It also found that the father’s conduct had not clearly abandoned his right to seek a summary return.
The ruling addresses only the jurisdiction challenge. The judge said the Polish non-return decision could be reversed at a later hearing, or W could remain in Poland or return could be stayed for other reasons. Those questions were not decided on this motion. The case is to be listed for a full hearing, which will consider W’s welfare and determine custody. The judge encouraged the parents to pursue mediation.