The Court of Appeal has allowed a father’s appeal and ordered that his seven-year-old son be returned to Poland by 15 September 2020, following a stay to allow time after the child’s mother gave birth. The court set aside a High Court decision that had refused the return under the Hague Convention.
The mother brought the child, identified in the judgment as Jan, from Poland to Ireland in December 2018 without his father’s consent. The parties accepted that the removal was wrongful. The father began return proceedings in June 2019. A Polish court had previously ordered that Jan live with his mother and set access arrangements for his father; custody and relocation proceedings remained pending in Poland.
The High Court found a grave risk of harm under Article 13(b), citing travel during the Covid-19 pandemic, the mother’s pregnancy and the prospect that Jan would travel without her and be placed in his father’s care. It also treated Jan’s 18 months in Ireland as potentially relevant. The Court of Appeal held that the evidence did not establish the required grave risk. It said the pandemic created no grave risk of harm on the evidence before it, and that the High Court had wrongly relied on a lack of evidence about travel safety.
The appeal court also found that the High Court had relied too heavily on a psychologist’s limited observations about Jan’s welfare and his relationship with his father. The psychologist had interviewed Jan twice, and the judgment noted that the child’s account of his father was influenced by what his mother had told him. The appeal court said the return proceedings were not a full custody hearing and that Polish courts were better placed to assess the parents’ competing claims and decide Jan’s future care. It held that the passage of time alone was not a relevant grave-risk factor in this case.
The court concluded that the Article 13(b) defence had not been established. It ordered Jan’s return to Poland, but stayed the order until 15 September 2020, noting the mother’s estimated delivery date of 15 August. The six-week period was intended to allow preparation for Jan’s return and arrangements for his care. The court said arrangements should remain in place until the Polish courts determine the custody and relocation proceedings. It allowed the appeal.