D (Z) v D (K)

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 13 June 2007
• Docket Number: RECORD NO. 2007 43 HLC
• Date: 13 June 2007

[2008] IEHC 176

THE HIGH COURT

RECORD NO. 2007 43 HLC

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

AND IN THE MATTER OF THE HAGUE CONVENTION

AND IN THE MATTER OF COUNCIL REGULATION 2201.2203

AND IN THE MATTER OF D.W. (A CHILD)

BETWEEN/

Z.D.

APPLICANT

AND

K.D.

RESPONDENT

Abstract:

Family law - Child abduction - Wrongful removal - The Hague Convention - Council Regulation 2201.2203 - Whether the respondent wrongfully removed the child from the place of his habitual residence - Whether the court's discretion should operate to return the child to the place of his habitual residence.

Facts The applicant, who was the maternal grandfather of the child the subject matter of these proceedings sought a declaration that the respondent herein wrongfully removed the child 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 also sought an order pursuant to article 12 of the Convention for the return forthwith of the child to the place of his habitual residence, namely Poland. The applicant submitted that from the time of the child's birth, he resided with the applicant and his wife, who was now deceased. The respondent initially resided with the applicant also but later moved away. The District Court in Poznan, Poland made an order placing the child in the foster care of the applicant on a permanent basis but the respondent failed to deliver the child into the care of the applicant on foot of that order and the applicant subsequently discovered that the respondent was residing with the child in Ireland. When the matter came on for hearing it was accepted by counsel for the respondent that the applicant did have rights of custody and had exercised such rights. There was a psychological report before the court. The child stated that he did not wish to return to Poland and his grandfather. It was submitted on behalf of the respondent that the return of the child to Poland would result in a grave risk of psychological harm. One final issue of relevance was that a European Arrest Warrant had issued in relation to the respondent and was pending in the High Court Extradition list.

Held by MacMenamin J. in granting a declaration that the respondent herein wrongfully removed the child from the place of his habitual residence and an order for the return forthwith of the child to the place of his habitual residence: That although considerable weight was to be attached to the views of the child, those views were not in law so compelling as to justify an order refusing the return of the child. The child had not attained a sufficient degree of maturity that would trigger the possibility of fully relying on that defence. Furthermore, there was no conclusive evidence of settlement of the child in Ireland but there was sufficient evidence of subterfuge and consequently the court's discretion in that regard went against the respondent. The respondent did not plead grave risk until a late stage in the case and the reliance on grave risk must be seen in that light. The respondent failed to meet the extremely high threshold required for that defence. The Polish courts have had a number of hearings and applications in this case over a number of years and therefore were best placed to make the most appropriate order concerning the child's care. The discretion of this court must be exercised in favour of a return of the child to Poland.

Reporter: L.O'S

1 JUDGMENT of Mr. Justice John MacMenamin delivered the 13th day of June 2008.

2 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.

3 In order to deal with certain issues, it is necessary to describe the sequence in which the evidence unfolded.

4 The child

5 D.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.

6 The applicant

7 The 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.

8 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.

9 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.

10 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.

11 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.

12 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.

13 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.

14 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.

15 The respondent's case

16 The 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...