The Court of Appeal has refused to order the return to Poland of a teenager who was taken to Ireland by his mother, despite upholding a finding that Poland was his habitual residence at the time. The court allowed the mother’s appeal because of the boy’s objection to returning, considered alongside his age, maturity and individual circumstances.
The case concerned “Pawel”, the name used for the child in the judgment. He was born in Ireland and had lived most of his life there. His parents, both Polish nationals, gave conflicting accounts of why he went to Poland in July 2021 and how long he was expected to stay. The High Court found that his habitual residence had changed to Poland in September 2021, when he was registered for home schooling there.
The Court of Appeal dismissed the mother’s challenge to that finding. It said the schooling arrangements and his return to Poland in May 2022 to complete examinations supported the conclusion that he had become integrated there. The court also found that the father’s possession of the boy’s passport was neutral to the habitual-residence question.
The appeal court rejected the father’s cross-appeal that the boy had expressed only a preference to stay in Ireland. The independent assessor’s report described his concerns about leaving friends, school and his life with his mother and half-brother. The court concluded that, given his age and maturity, his clearly expressed reasons amounted to an objection under the Hague Convention.
The court criticised the mother’s removal of the boy from Poland without his father’s consent, calling it a clear case of child abduction. It nevertheless found that the High Court had not sufficiently shown how it weighed the boy’s circumstances when deciding whether to order his return. The court said the child’s objection must be assessed with all the evidence and Convention policies in view, rather than weighed only against the policy favouring prompt return.
The appeal court concluded that the boy’s objection, his age and maturity, his schooling and friendships in Ireland, and the upheaval he had already experienced outweighed the case for summary return. It refused return under Article 13(2) of the Hague Convention. The judgment said Polish courts would decide residence or relocation after a full welfare consideration, and directed that a certificate be sent to the Polish court seized of the custody matter. The court proposed no order as to costs, subject to either party notifying the Registrar within seven days if they wished to argue for a different order.