The High Court has ordered a child who had been living in Poland to return to Ireland and live with her mother for the remainder of the 2011/2012 Irish primary school year. The order followed a four-day hearing on custody and access under Article 11(7) of EU Regulation 2201/2003. It was a full custody determination, not an appeal from the Polish non-return decisions.
The child, born in Poland in 2000, had lived in Ireland with both parents before travelling to Poland with her father for a holiday in July 2009. An Irish District Court order required her return with her mother by 15 August. She was not returned, and the High Court recorded that her continued stay in Poland was a wrongful retention. The Polish courts later dismissed the mother’s application for the child’s return.
The High Court heard evidence from both parents and a court-appointed assessor, who interviewed the child in Ireland and Poland. The judge said both parents could provide loving and safe care. The child was described as emotionally vulnerable amid the family difficulties. She wanted more time with her mother and better contact with her brother, while consistently expressing a preference to attend school in Poland.
The assessor recommended substantial parenting input from both parents and said the mother’s involvement needed to increase after the limited contact of the previous two years. She favoured a period at school in Ireland before the child returned to Poland for sixth class, while warning that continuing immediately in Polish school risked leaving the mother without a sufficiently real role. The judge accepted those concerns and found that the benefits of the child living with her mother during the current school year outweighed the educational disruption.
The court ordered joint custody, replacing the mother’s 2009 sole-custody order. The father was directed to return the child to Ireland at his expense by 2 November. She was to live with her mother during Irish school terms, attend fifth class in Ireland and attend Saturday Polish school. The order provided for periods with the father during specified holidays and in July 2012. She was to return to Poland by 31 August 2012, live with her father and attend sixth class there. The judgment also set out contact arrangements, including telephone contact three to four times weekly and access to school records for both parents.
The court said it would issue a certificate under the EU Regulation, having found that the child and both parties had an opportunity to be heard and that the Polish decisions and underlying evidence had been considered. It left unresolved how travel costs after the initial return should be divided, whether travel arrangements needed further specification, and whether Polish orders should be vacated or matching orders made. The court also allowed either party to apply about visits during school terms.