The High Court has ordered a six-year-old boy, identified as K, to return to Poland after finding that he objected to going back but that his views did not justify refusing a return under the Hague Convention.
In a judgment delivered on 12 July 2021, Ms Justice Mary Rose Gearty said the boy’s mother had wrongfully retained him in Ireland after an access visit in February 2021. His father had applied for his return within a year. The court said the father had custody of K in Poland before the retention, and that the retention was wrongful within the Convention’s meaning.
The boy was born in 2014 and moved to Ireland with his parents and half-sister in 2015. In October 2017, before taking him to Poland, his father signed an agreement promising not to object if the mother returned with K to Ireland. The father later obtained an ex parte custody order in Poland. The judgment says it was unclear whether the agreement was disclosed to the Polish court. In March 2021, a Polish court refused the mother’s application to keep K in Ireland pending divorce proceedings.
The mother relied on three Article 13 defences: consent, grave risk and the child’s objections. The judge concluded that the father had not consented to K remaining in Ireland in 2021, saying his earlier written consent had been withdrawn against the background of the Polish proceedings.
The mother alleged that the father had used drugs, sworn and watched material inappropriate for children. The judge said she did not need to decide whether those activities occurred or continued. Even taken at their height, the allegations did not establish grave risk of serious harm. An expert assessment and a Polish school report described K as well-adjusted and well cared for. The judge also found that his return would not create an intolerable situation because of separation from his older sister in Ireland, while recognising that their relationship could be damaged.
The psychologist’s assessment recorded that K would be “really sad” if unable to live in Ireland and would not consider returning to Poland. The judge found these statements amounted to an objection, expressed clearly and apparently independently. She gave it some, but not great, weight, citing his young age, positive memories of life in Poland, and his wish to maintain a relationship with both parents.
The court said Poland was K’s habitual residence and its courts should decide custody and welfare matters in detail. It ordered his return, while noting that the Polish court would be able to consider the expert report. The judgment encouraged the parents to seek an internationally enforceable mediated agreement and said the child needed relationships with both parents, his sister in Ireland and his grandmother in Poland.