The Supreme Court refused an application to return two children to Poland under the Hague Convention, concluding that a move from Ireland in summary proceedings would not be in the elder child’s best interests without a full welfare assessment. The Court also refused the return of his younger sister. It said Polish courts retain jurisdiction over any continuing custody dispute.
The father appealed after the Court of Appeal had refused to order the children’s return. The Supreme Court, in a judgment delivered by Ms Justice Finlay Geoghegan on 19 February 2019, allowed the appeal in part. It set aside the Court of Appeal’s decision on the exercise of discretion, but did not order the children’s return or send the case back to the High Court. Instead, it exercised the discretion under Article 13 of the Hague Convention itself and refused the return application.
The children, identified in the judgment as A and M, were born in Ireland in 2010 and 2013. They moved to Poland with their father in November 2015, with their mother’s consent. The mother brought them back to Ireland on 5 January 2017. The High Court found that they had been habitually resident in Poland and that their removal without the father’s consent was wrongful. It rejected the mother’s grave-risk defence. The Court of Appeal upheld those findings; they were not at issue in the Supreme Court appeal.
The elder child, A, was interviewed by a psychologist in November 2017, aged seven years and seven months. The report recorded that he objected to returning to Poland and wanted to live in Ireland with his mother, sister and his mother’s partner. The Court of Appeal found that A objected to return and was sufficiently mature for his views to be considered. Those findings were final and were not appealed to the Supreme Court.
The Supreme Court held that the High Court had wrongly considered A’s objections only alongside the grave-risk defence, rather than separately under Article 13. It also found that the Court of Appeal had not properly weighed the Convention’s return policies, A’s age and the available evidence. The Court said the psychologist’s report was limited, and that the Court of Appeal should also have considered the mother’s earlier consent to the children moving to Poland and the reasoning of a Polish court that had dismissed her separate return application.
The Supreme Court gave limited weight to A’s objections, but said he had spent about five and a half years in Ireland before moving to Poland, about 14 months in Poland, and then two further years in Ireland. In these unusual circumstances, the Court concluded that requiring his return through summary proceedings would not be in his best interests without a full welfare assessment. The younger child’s return was also refused, consequentially, to avoid separating the siblings.
The order directs that relevant papers be transmitted to the Polish courts for the continuing custody proceedings. The Supreme Court stressed that its decision did not determine long-term custody or where the children should live after a full welfare assessment.