The High Court declared that two children had been wrongfully removed from Poland to Ireland and ordered their return, but stayed the order until a January 2018 court list if their mother undertook to progress custody proceedings in Poland.
The judgment, delivered by Justice Ní Raifeartaigh on 14 November 2017, concerned an application by the children’s father under the Hague Convention. Their mother had brought them back to Ireland after Polish proceedings in April 2017. The Polish court had refused her custody application at that stage because the evidence had not been fully gathered; it had not authorised the children’s move to Ireland.
The court was satisfied that the father had custody rights under Polish law and was exercising them when the children were brought to Ireland. It rejected the mother’s claim that he had consented, finding she had not proved consent on the balance of probabilities. The court said the application was made within a year of the removal, so the “well-settled” defence did not arise.
The children, aged 10 and 8, had told a psychologist they were happy in Ireland and did not want to return to Poland or visit their father. The psychologist reported negative views of their father, but did not consider either child unduly influenced by their mother. The judge found the older child had a clear objection to returning, while describing the younger child’s view as a preference. She nevertheless decided the Convention’s policy against wrongful removal weighed in favour of return, taking account of the children’s ages and the circumstances described in the psychological reports.
The mother argued that the children feared their father and would suffer if sent back to live with him. The judge did not accept that this established grave risk under the Convention. She referred to prior Polish court arrangements giving the father physical custody and to a probation officer’s inspection that had reported no objection to him or the home. The children’s reports that their father drank too much were contested by him; the judgment also records that the mother had experienced alcohol problems and said she had received treatment.
The judge said an immediate move during the school term, without preparation, could cause further disruption. She therefore stayed the return order until the first Hague Luxembourg Court list in Ireland in January 2018, provided the mother undertook to progress the existing Polish proceedings promptly, including applying for custody and permission for the children to live in Ireland. The Irish psychological reports were to be released from the in-camera rule for use by the Polish court and the parties’ legal teams. The case was to be mentioned before the end of the term to check on progress. The judgment does not state what happened after that mention.