D. -v- D., [2008] IEHC 176 (2008)

Docket Number:2007 43 HLC
Party Name:D., D.
Judge:Mac Menamin J.
 
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THE HIGH COURT FAMILY LAWRECORD NO. 2007 43 HLCIN THE MATTER OF THE CHILD ABDUCTION ANDENFORCEMENT OF CUSTODY ORDERS ACT 1991AND IN THE MATTER OF THE HAGUE CONVENTIONAND IN THE MATTER OF COUNCIL REGULATION 2201.2203AND IN THE MATTER OF D.W. (A CHILD)BETWEEN/Z.D.APPLICANTANDK.D.RESPONDENTJUDGMENT of Mr. Justice John MacMenamin delivered the 13th day of June 2008.The applicant in these proceedings seeks a declaration that the respondent herein has wrongfully removed the child the subject matter of these proceedings from the place of his habitual residence and into the jurisdiction of the courts of Ireland within the meaning of article 3 of the Convention on the Civil Aspects of International Child Abduction (the Hague Convention). The applicant further seeks an order pursuant to article 12 of the Convention for the return forthwith of the child named in the title hereof to the place of his habitual residence.In order to deal with certain issues, it is necessary to describe the sequence in which the evidence unfolded.The childD.W. the child named in the title of these proceedings was born on 28th October, 1998. He is, at the time of this application, nine and a half years of age. D. was born in Poland and his place of habitual residence prior to the events described here was at all material times in that State. The respondent and D. arrived in Ireland on 26th September 2006.The applicantThe background to this case is a sad one. The applicant is D's maternal grandfather. The respondent is D.'s mother. The applicant and the respondent are therefore father and daughter. The child's father died in 1999, soon after his birth in 1998. The applicant's case is that, from the time of the child's birth in 1998, D. resided with the applicant and the applicant's former wife, his grandmother. Initially, the respondent also resided with them. However, it is said that in October, 1999, she left the child and moved away from their home town of Poznan.By order of the Poznan Court dated 28th March, 2002, the respondent's rights in respect of the child were restricted on an interim basis. On 2nd March, 2004, care of the child was transferred to the child's maternal grandmother. However, the applicant's former wife died in October, 2005, at which time the child and the respondent returned to reside with the applicant.In November, 2005, the respondent removed the child from the care of the applicant but remained in Poland. The applicant therefore instituted fresh proceedings which bore Record No. VIII RNsm 714/05. By order of the Polish Courts dated 13th December, 2005, the child was directed to be placed in the foster care of the applicant. The respondent refused to comply with this order. She removed herself and the child from Poznan and could not be traced.On 21st September, 2006, the District Court in Poznan, Family and Juvenile Division, made an order placing the child in the foster care of the applicant on a permanent basis. The nature of the respondent's further interaction with the Polish court authorities will be dealt with later in this judgment. She appears to have terminated her lawyer's instructions in September 2006, after the hearing which again granted custody to the applicant.The respondent failed to deliver the child into the care of the applicant on foot of the order made on 21st September, 2006. The applicant informed the appropriate authorities in Poznan of the breach of the order. Subsequently, searches were carried out by court authorities and the police but the child's whereabouts were not established at that time.In 2007, a lead suggested that the respondent might have removed the child to Denmark and an application was transmitted to that jurisdiction on 7th July, 2007. However, the Danish authorities confirmed that the child was not residing in that country.It was subsequently established that D. and the respondent was residing in Ireland. Therefore, on 15th October, 2007, the applicant applied to the Irish central authority for the return of the child. The Irish central authority initially returned this application believing that the child was not in this jurisdiction. However, documents submitted by the Polish authorities on 22nd October, 2007, confirmed, after the order of 21st September, 2006, that the respondent and child had indeed travelled to Ireland, first travelling by bus from Poland to London and thereafter from London to Cork.By letter dated 2nd November, 2007, an application for the return of the child was transmitted to the Clondalkin Law Centre to act on behalf of the applicant. By letter of 19th November, 2007, faxed copies of the request for return and other supporting documents were transmitted to that office. However, these documents were not legible and therefore no action could be taken on behalf of the applicant at that time. By letter dated 29th November, 2007, a solicitor acting for the applicant received the original documents and was then in a position to process the application. It was ascertained that the respondent and child were living in an apartment in Cork City. In a replying affidavit the respondent states that the child has at all times been known as K. This was denied by the applicant. There is no evidence that the child habitually used any name other than D. prior to his arrival in Ireland. K. is, however, his second Christian name, his surname is his late father's.The respondent's caseThe respondent states that after the child's birth she resided with her parents until October, 1999, when her partner, the child's father, died. She says that she travelled to Krakow to look after her partner's affairs and obtained work there. D. stayed with her mother (his grandmother) and she visited him at weekends and sometimes for longer periods during absence from work. She states that she did not object to her mother obtaining temporary guardianship rights in respect of D. in March, 2004. When the applicant and his wife divorced in or about 2003, D. resided with his maternal grandmother until she died in October, 2005. Thereafter, the respondent stayed with D. in Poznan for a short time until 3rd November, 2005, at which time she moved back to Krakow. In her first replying affidavit, the respondent denied that by order of the Polish courts dated 13th December, 2005, the child had been placed in foster care. She averred that the order only related to the child's place of residence and claimed that there had been a stay placed on the order. This was not so. She accepted that the applicant did issue proceedings on 7th November, 2005 in Poznan, seeking guardianship of D. On 28th October, 2005, she herself issued proceedings seeking to have her full parental rights, which had been restricted in March, 2004, restored. She states that she attempted to have the proceedings transferred from Poznan to Krakow, however, the courts in Krakow referred the matter back to Poznan.The respondent alleged that the applicant is, or was, involved in a relationship with a prosecutor in the Poznan jurisdiction and that she had concerns in relation to any hearing there. She contended that she moved address while in Krakow because she was being harassed by the applicant. No supporting or corroborative evidence whatever has been furnished to the court regarding any alleged relationship between the applicant and any (unnamed) prosecutor. The applicant has no legal background himself. No satisfactory explanation has been furnished as to why the respondent moved address in Krakow other than to avoid the applicant. No detailed evidence of any 'harassment' has been provided despite the fact that the respondent filed a number of affidavits.The respondent states that she was not notified of any hearing dated in September, 2006 in Poznan. She states she had no knowledge of the making of any order in that month until she was served with the court orders. She asserted that an order exhibited, stated that the decision of the District Court in Poznan, made in September, 2006, only became "legally valid on 13.10.2007." This is not so. That date reference is to the validation of the interpretation of the order from Polish to English. It was never conceivable that such a lengthy elapse of time could occur between the making of an order and its coming into effect. The respondent admits that she left Poland on 26th September, 2006, and travelled with D. to Ireland with a view to living here indefinitely. She gave no reason for her departure. One can only conclude it was to avoid the court order of 21st September 2006.In her affidavit, the respondent swore that the applicant did not hold right of custody on 26th September, 2006, nor was he entitled to rights of custody at that time. She states that the consent of the applicant was not necessary for the removal of the child from Poland and that the applicant has not seen the child since 5th October, 2005. None of this was correct.Many of the allegations contained in the respondent's affidavit are denied by her father. He denies that she worked in Krakow in 1999; or that as alleged, she visited D. at weekends or for extended periods during absence from work. He states that she came to visit him at most every two or three months and then only at the insistence of her mother and sister.Proceedings 2002-2004It is necessary now, to examine the position adopted by the respondent in the various Polish court proceedings. The applicant denies that the respondent consented to her mother having guardianship of D. He states that she actually objected to the orders which were made in Poznan, both on 26th March, 2002 and 2nd March, 2004.In the order of 26th March, 2002, the court limited the respondent's parental authority pending the conclusion of the proceedings and placed D. in the foster care of the respondent's mother and the applicant. The applicant states that the reason for this order was that the respondent was not looking after her son. I have considered the order of the court...

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