The High Court has ruled that a nine-year-old girl must be returned to Poland after her mother brought her to Ireland without her father’s consent, finding that a later Polish court order did not authorise the move abroad.
In a judgment delivered on 7 September 2022, Ms Justice Mary Rose Gearty said the girl, called Paula in the judgment, had been habitually resident in Poland. The court found that her father was exercising his custody rights when she was removed in August 2021.
The mother relied on a Polish interim order, made in December 2021, providing that Paula’s place of residence would be wherever her mother lived until the divorce proceedings concluded. The judge accepted evidence from a Polish family-law expert that the order referred to a residence within Poland and did not permit Paula to live in Ireland. The order was made after the move and did not retrospectively authorise it, the judgment said.
The mother had described the marriage as involving emotional bullying, economic control and assaults; the father disputed those allegations. The judge said the evidence had not been tested by cross-examination and made no finding on those disputed allegations. She concluded that the risk advanced was primarily a risk to the mother and was insufficient to establish the grave risk required to refuse return. The judgment noted that the Polish court had ordered Paula to live with her mother and that the father undertook to provide funds for the mother and child to live independently while interim arrangements were considered in Poland.
Paula told a psychologist she wanted to remain in Ireland with her mother and expressed concern about returning to Poland. The judge found that she objected to return, was mature enough for her views to be considered, and expressed them moderately. Giving the views relatively low weight, the judge concluded they did not outweigh the Convention’s return objectives. She also said the Polish courts were best placed to decide longer-term custody and welfare issues.
The court rejected the argument that the application should be refused because Paula had spent about a year in Ireland. It also did not grant the requested stay outright. The judge said she would consider a stay only if an application to the Polish court could be heard and decided very swiftly, within weeks; otherwise, a return order would follow as a matter of course. The judgment therefore set out the basis for return while leaving that narrow possibility open.