The High Court has ruled that D, a child under 10 who was taken from Ireland to Poland in 2018, should continue to live in Poland after a hearing on custody and his best interests. The court did not order his return to Ireland.
The judgment, delivered by Ms Justice Mary Rose Gearty on 5 December 2023, followed Polish proceedings in which the removal was found wrongful but D was not returned because the Polish court found a grave risk of harm. The Irish hearing was a separate welfare assessment under Article 11(7) of Council Regulation 2201/2003/EC and the Guardianship of Infants Act 1964. It was not a fresh summary Hague Convention return hearing, and the High Court said its decision did not legalise the original removal.
The court considered whether it was in D’s best interests to stay with his mother in Poland or move to live with his father in Ireland. It found that both parents were capable and loving carers and that D had a strong relationship with each of them. The court also noted that he has siblings in both countries and enjoys in-person contact with both parents.
A central issue was continuity of care. D has an autism diagnosis and receives physiotherapy, play therapy and schooling in Poland. The father raised concerns about therapies, diet, school progress and access to information. But the Irish psychologist engaged by him said the Polish services were appropriate. The psychologist also warned that equivalent support in Ireland would depend on D gaining relatively quick access to a multidisciplinary team, which was not guaranteed. The court found no expert support for the father’s proposed treatments or for his claim that moving would improve D’s overall development.
The court said a move could cause distress and would risk disrupting D’s established care, home, school and Polish-language environment. It also found that the parents’ poor communication was undermining consistency between services arranged in the two countries. The expert recommended a parenting plan covering information sharing, therapies, phone use and contact. The court urged the parents to agree one, with mediation if needed, but said it could not direct or enforce improved communication.
The court accepted the mother’s assurance that generous access with the father would continue. It said D’s current access should continue and that sustained time with his father was in D’s interests. The judge proposed making no order as to costs, but said the parties would be heard on costs and any consequential orders arising from the decision not to order D’s return.