The High Court has refused a father’s application to have his two children returned to Poland under the Hague Convention, finding that he had not shown that Poland was their habitual residence when they came back to Ireland in February 2017.
In a judgment delivered on 16 January 2018, Ms Justice Ni Raifeartaigh said the children had lived in Ireland for most of their lives. The family moved to Poland in July 2016, and the children returned to Ireland with their mother on 5 February 2017. The father sought a declaration that their removal was wrongful and an order for their return.
The case was decided through a summary procedure based on sworn affidavits, without oral evidence. The judge said the father bore the burden of proving, on the balance of probabilities, that the children’s habitual residence had changed to Poland during their six months there.
The parents gave conflicting accounts of their living arrangements and intentions. The mother said she had gone to Poland temporarily to recover from injuries and intended to return to Ireland. The father maintained that the move was intended to be permanent and a joint decision. The judge found his account unreliable, including his description of their earlier living arrangements in Ireland, and was not satisfied that the evidence established a long-term joint move to Poland. She concluded there had been no wrongful removal within the meaning of the Convention.
The judge also considered the children’s objections in case that conclusion was wrong. The 11-year-old boy said he wanted to remain in Ireland, where he had friends, school and sports, and described feeling unsafe with his father. His younger sister also said she did not want to return. A child psychologist described both children as able to express their views, while noting their limited understanding of long-term consequences and that their views could have been influenced by their mother.
The judge gave considerable weight to the children’s views, particularly the boy’s, and said their fear of their father was consistent with the accounts and documents before the court. She concluded that, even if the removal had been wrongful, she would exercise her discretion against returning them to Poland.
A defence based on grave risk was also argued. The judge said it had not been made out, explaining that the legal threshold required more than showing that assaults had taken place. She refused the reliefs sought.