The High Court has ordered two boys to be returned to Poland after finding their father had not proved that their mother consented to their move to Ireland in March 2012. The judge said the order was not a decision on custody, which remained for the Polish courts.
The judgment, delivered by Ms Justice Finlay Geoghegan on 21 September 2012, arose from the mother’s application under the Hague Convention and EU regulations. The parents, both Polish nationals, had lived with the boys in Ireland before the mother returned to Poland with them in August 2010. The father brought the boys back to Ireland on 7 March 2012.
The parents agreed that the boys were habitually resident in Poland at the time, that the mother was exercising custody rights, and that the removal breached those rights. The father argued that the mother had consented to the move. She denied agreeing to it.
The judge said the father bore the burden of proving consent on the balance of probabilities, with clear and cogent evidence. She found his account of discussions about the boys’ future was not specific enough to establish real, positive and unequivocal consent. The father had not told the mother when he planned to leave. She left the boys at school and kindergarten that morning expecting to collect them later, and had no opportunity to say goodbye. The judge also noted that the mother sought their return through the Polish Central Authority within two weeks. The consent defence therefore failed.
The judge found that the elder boy, referred to as Peter for anonymity, objected to returning to Poland and was mature enough for his views to be considered. His objections reflected a wish for stability and a preference for life in Ireland, but the judge described them as not very strong. The younger boy, referred to as Paul, was not yet five at the time of his interview, and the evidence did not establish an objection that could be taken into account.
The father also argued that the boys should not be returned because separating the siblings could place the younger child in an intolerable situation. The judge left unresolved the legal question of how discretion should be exercised where siblings have different circumstances. She concluded that, even if she had discretion not to return both boys, their parents’ continuing custody and schooling dispute should be decided promptly by the Polish courts, which had jurisdiction and could consider the full welfare issues. She also took account of the mother’s prompt application.
The court ordered the boys’ return to Poland. The judge said she intended to stay the order briefly to allow discussion about Peter’s schooling and organise a return in the least disturbing manner. She did not set the stay’s timing or terms in this judgment, instead directing that counsel be heard on them. The judgment also left for further submissions how the decision and reasons should be communicated to Peter.