The High Court has refused a father’s application to have his son returned from Poland to Ireland, finding that the child’s best interests were served by remaining in Poland.
In a judgment delivered on 13 March 2024, Ms Justice Mary Rose Gearty said the child, referred to as Q, was Polish, spoke Polish and had lived in Poland for almost all of his life. His mother, who had been his primary carer, and extended family on both sides lived there. Q also received special education therapy in Poland for which the court heard there was no comparable care immediately available in Ireland.
The case was brought under Article 11(7) of the EU’s Brussels IIa Regulation, after Polish courts had refused to return Q following his removal to Poland in 2019. Those courts found the removal wrongful but accepted a grave-risk defence. The Irish High Court’s task was to decide custody by reference to Q’s welfare, rather than conduct a summary return hearing.
The judge rejected the mother’s preliminary argument that the Irish court had lost jurisdiction because the father had participated in Polish proceedings and Q was now habitually resident there. She found no evidence that the father had acquiesced in Q remaining in Poland: he had sought his return since the early stages of the proceedings.
The court considered the father’s relationship with Q significant, and an expert assessor reported that they had a good relationship. But the judge said the father had made no proposals for how he would care for Q if the child returned. She also found that the child’s educational, cultural and linguistic needs were being met in Poland and would not be fully met in Ireland.
The mother had alleged violence and alcohol addiction. The judge said there was insufficient evidence to find physical violence by the father that would affect Q. However, she relied on the assessor’s account of smelling a strong odour of alcohol during a meeting and the father’s undisputed statement that he sometimes could not remember how he got to bed after drinking. The judge concluded that he probably had an issue with alcohol abuse and that drinking to the point of memory loss posed a risk to Q’s welfare if Q were in his care.
Because the court refused return, it said access was for the Polish courts to determine. The existing interim video-access order would remain in force until the matter was listed there. The court also lifted the in-camera rule to allow the file, including the expert report, to be sent to the relevant Polish courts. It made no costs order and said it would hear the parties on the precise form of the final orders.