The Court of Appeal has allowed a mother’s appeal and dismissed the father’s application for the summary return of their two children to Poland under the Hague Convention.
The High Court had ordered the children’s return in January 2018. It found that they were habitually resident in Poland when their mother brought them to Ireland in January 2017, and that their father held custody rights under Polish law. The mother did not appeal the habitual-residence finding.
The children, identified in the judgment as Jan and Lena, were born in Ireland. They lived in Poland with their father from November 2015 until January 2017, while their mother remained in Ireland. The judgment records a dispute over whether their move to Poland was intended to be permanent or temporary; the Court of Appeal said it did not need to resolve that issue.
A court-appointed psychologist interviewed Jan, then seven. The report, as described in the judgment, said he objected to returning to Poland because he alleged that his father shouted at and beat him. The Court of Appeal accepted that Jan’s objection was genuine and sufficiently mature to be taken into account. It said the practical consequence of returning the children would be that they would be in their father’s sole day-to-day care.
The appeal court said the High Court had erred by treating proof of grave risk of harm or an intolerable situation as necessary before it could refuse return based on a child’s objection under Article 13. Those are separate grounds under the Convention. The court also said the mother’s decision to leave the children with their father in 2015 did not establish what Jan later experienced while in his father’s care in Poland.
The court concluded that Jan’s objection weighed heavily against return. It also refused to return Lena alone, finding that separating the siblings would place her in an intolerable situation given their close relationship. The court noted that a Hague Convention return decision does not determine the merits of any custody dispute.
The Court of Appeal substituted an order dismissing the father’s return application. The judgment does not determine long-term custody arrangements.