C. v G. (Child Abduction (Poland) Grave Risk Defence)

• Jurisdiction: Ireland
• Judge: Mr Justice Garrett Simons
• Judgment Date: 14 May 2020
• Neutral Citation: [2020] IEHC 217
• Docket Number: 2019 No. 16 HLC
• Court: High Court
• Date: 14 May 2020

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT 1991

AND IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

AND IN THE MATTER OF COUNCIL REGULATION (EC) 2201/2003

IN THE MATTER OF I.C. (A MINOR)

BETWEEN

Z.C.

APPLICANT

AND

A.G.

RESPONDENT

[2020] IEHC 217

Garrett Simons J.

2019 No. 16 HLC

THE HIGH COURT

Child abduction – Wrongful removal – Hague Convention – Applicant seeking the return of a child to his place of habitual residence – Whether a defence had been made out under the Hague Convention

Facts: The applicant applied to the High Court for the return of a child to his place of habitual residence, Poland. The application was made pursuant to the Child Abduction and Enforcement of Custody Orders Act 1991 (as amended). The parties to the proceedings were the child’s father and mother. The application was brought by the father alleging that the mother wrongfully removed the child from Poland in December 2018.

Held by Simons J that an order directing the return of the child to Poland would give rise to a “grave risk” that he would be exposed to physical and psychological harm. Simons J held that a defence had been made out under Article 13(b) of the Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention), and that the court should exercise its discretion to refuse to direct the child’s return.

Simons J held that the application for the return of the child would be dismissed.

Application refused.

JUDGMENT of Mr Justice Garrett Simons delivered electronically on 14 May 2020

INTRODUCTION

1 This matter comes before the High Court by way of an application for the return of a child to his place of habitual residence, Poland. The application is made pursuant to the Child Abduction and Enforcement of Custody Orders Act 1991 (as amended). The Act provides that the Convention on the Civil Aspects of International Child Abduction 1980 ( “the Hague Convention”) shall have the force of law in the State, and that judicial notice shall be taken of it.

2 2. To protect the child's identity, I will refer to him throughout this judgment as “Jan”, rather than by his real name. The parties to the proceedings are Jan's father and mother. The application has been brought by the father alleging that the mother wrongfully removed Jan from Poland in December 2018.

3 The mother has not formally conceded that the removal of Jan represented a “wrongful removal” within the meaning of the Hague Convention. Indeed, at one stage of the proceedings, the mother asserted—mistakenly as it transpired—that she had the right under an order of a Polish Court to determine unilaterally the child's place of residence.

4 However, it is fair to say that the thrust of the submissions of the parties were directed not to this threshold issue, but rather to the posterior question of whether any of the so-called “defences” to an application for the return of the child under Article 13 of the Hague Convention has been made out by the mother. This judgment proceeds therefore on the basis that the removal of the child to Ireland was a “wrongful removal” and that the criteria under Article 12 have been fulfilled. The court relies in particular on the affidavit of laws of 25 November 2019 (discussed at paragraph 13 below).

5 The three principal issues to be resolved by the High Court in this judgment are as follows. First, would the return of the child expose him to physical or psychological harm or otherwise place him in an intolerable situation (the “grave risk” defence). Secondly, would the return be contrary to the “best interests” of the child. Thirdly, it is necessary to consider whether the child “objects” to being returned, and, if so, to apply the three stage test established in the case law.

6 I will address each of these issues in sequence below. Before turning to that task, however, it is necessary first to set out the relevant procedural history.

PROCEDURAL HISTORY

7 These proceedings concern the legality of the removal of a young boy (“ Jan”) from Poland. Jan is currently seven and a half years of age. Jan's mother brought him to Ireland on 8 December 2018, and the child has been residing here since that date. The mother had initially argued that the removal was lawful in circumstances where she asserted that she has the right to determine the child's residence as a result of certain orders made by the Polish Courts on 5 November 2018. This interpretation of the court orders is disputed by the child's father.

8 The father made a written request to the Central Authority of Poland that the child be returned to his place of habitual residence, Poland. This request was conveyed to the Central Authority of Ireland by the Central Authority of Poland on 29 May 2019.

9 The application had been listed before the High Court on a number of occasions in June and July 2019.

10 The High Court (Ní Raifeartaigh J.) made an order dated 1 July 2019 directing that the child be interviewed by a clinical psychologist, and a report to the court on the interview be prepared for the purposes of ensuring that the child is given the opportunity to express their views and be heard in the proceedings. The form of the order follows the standard order which is now common in these cases.

11 A report dated 22 July 2019 was submitted to the court. The report's conclusions are stated as follows.

10. Conclusion:

10.1 [The child] has settled in the short time that he is in Ireland but stated that he would like to talk to his father. From his account, there is a possibility that his mother has not encouraged contact with his father. Outside of the difficulties in respect of his father's use of alcohol no other reason was voiced as to how his parents separated. No reason was offered as to why he was living in Ireland, other than mentioning that the amount of pollution from factories in Poland. [The child], while having a level of understanding appropriate to a six and half year old, would not be mature enough to understand the nuances of his parent's relationship difficulties. It is a distinct possibility that his understanding of the family narrative is influenced to an extent by those adults with whom he is in regular contact.

10.2 Any negative experiences in his parents relationship, which he may have witnessed is likely to have had an impact on his thinking. He has voiced a wish to speak with his father and this should happen as soon as practicable. It is also important for his self-identity that his biological father continues to play a role in his life regardless of how small that may be. Any narrative from his mother or other important adults in his life should not undermine the role of his father however marginalised he has become in their thinking.”

12 The progress of the proceedings was delayed pending the determination of an application for legal aid on the part of the mother. The legal aid certificate issued towards the end of July 2019, and the case was listed for hearing on 26 September 2019. In the event, however, the matter could not be heard on that date, and it was instead listed for hearing on 18 October 2019. On that occasion, counsel for the mother applied for an adjournment in circumstances where the mother asserted that she had obtained a legal opinion from a Polish lawyer which indicated that she had the right to determine the residence of the child. It was also suggested that the father may have implicitly consented to the removal of the child to Ireland, or, at least, to the mother having the right to determine residence. The legal opinion was in the Polish language, and a translation was not available as of 18 October 2019. The adjournment application was resisted by counsel on behalf of the father.

13 In the event, I decided to adjourn the proceedings in circumstances where, if the legal position had been as suggested by the mother, then this would be largely determinative of the question of whether there had been a wrongful removal. The parties undertook to obtain an independent legal opinion from an agreed expert. It took some time for the parties to obtain the independent legal opinion. An affidavit of laws has since been filed on 25 November 2019. The independent legal opinion indicates that the legal position is not as had been suggested on behalf of the mother. See, in particular, paragraphs 9 to 11 of the affidavit of Malgorzata Kieltyka, as follows.

“9. The enforceable court order of 5 November 2018 that confirmed the settlement included in the court minutes (amicable final settlement) should be understood by implication that the parties to the proceedings had the intention of determining the place of residence of the child to be in Poland, and according to more restrictive views, even in the town where the mother resided at the moment of issuing the ruling. This is the predominant view of the judicature in Poland. Therefore, without the consent of the father or the relevant Polish court order in this respect, the mother was not allowed to take the child to live outside Poland.

10. It follows from the Court Order and from the Court Minutes that the parties regulated only the issue where the child should live (namely that the child should live with his mother), so the Polish Court did not decide at all about the issues of restricting the parental authority of the father (or depriving the father of his parental authority). This means that the father co-decides together with the child's mother, according to general rules, whether the child can leave Poland and go abroad (permanently or even temporarily only).

11. In such cases the parent with whom the child lives, when the remaining parent disagrees to the child leaving Poland to another country, should apply to the Polish Family Court to obtain such consent. Such court ruling supersedes the decision (consent) of the...