J.T.S. v M.K.S.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Mary Rose Gearty |
| Judgment Date | 07 September 2022 |
| Neutral Citation | [2022] IEHC 515 |
| Court | High Court |
| Docket Number | [2022 No.1 HLC] |
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 2201/2003/EC
and
In the Matter of P.S., a Minor
(Child Abduction: Interpretation of Court Order, Views of the Child)
[2022] IEHC 515
[2022 No.1 HLC]
THE HIGH COURT
FAMILY LAW
Child abduction – Return – Hague Convention – Applicant seeking an order for the return of his child – Whether the respondent had court permission to remove the child
Facts: The applicant father applied to the High Court seeking an order for the return of his child, who was removed from Poland to Ireland in August of 2021. It was argued that the Court must summarily return the child pursuant to the Child Abduction and Enforcement of Custody Orders Act of 1991 and Regulation 2201 of 2003, which implement the Hague Convention on Child Abduction (the Convention) in Ireland. The respondent replied to the effect that she was entitled to take the child out of Poland in the manner she did on foot of an interim measure of the Polish Courts directing that the child would have residence with her in the context of divorce proceedings. The respondent also submitted that the applicant had not proven that he was exercising his custody rights in respect of his daughter and raised the defence of grave risk. Finally, she relied on the views of the child to persuade the Court to exercise its discretion not to return the child.
Held by Gearty J that, in August of 2021, the child was removed from Poland, where she had always lived, without the consent of her father, who was seeing his daughter regularly. Gearty J held that the parties to the application were in the middle of court proceedings in Poland, finalising their divorce; the residence, custody of and access to the child were issues in those proceedings. Gearty J held that while the respondent had obtained employment in Ireland and had alerted the court in Poland that she was moving, she had no court permission to remove the child. Gearty J was satisfied that a later order that the child was to reside with the respondent was confined to residence within Poland. Gearty J held that while the 9-year-old child objected to returning to Poland, her views were moderately expressed and so strongly linked to living with her mother that her views did not outweigh the Convention objectives, including those of security for the child, comity of laws between nations and the maintenance of a good relationship between the child and both her parents. Gearty J held that despite having spent a year in Ireland, the child’s best interests, on balance, were served by her returning to her country of habitual residence where the courts who had all her medical and educational records could make an informed decision as to her welfare and long-term interests.
Gearty J held that the applicant was entitled to an order returning his daughter. If the application to the Polish court could be heard and determined very swiftly, Gearty J held that she would consider a stay to allow this to be done but this could only be accommodated by a very speedy hearing, and such a course was being considered due to concerns about the child’s lengthy stay in Ireland, coupled with the fact that proceedings were already in being in Poland and in order to disrupt two further international moves of home for the child, in quick succession. Gearty J held that unless such an application could be heard and determined in a matter of weeks, an order to return would follow as a matter of course.
Application granted.
Judgment of Ms. Justice Mary Rose Gearty delivered on 7 th day of September, 2022
This is a case in which the Applicant father seeks an order for the return of his child, called Paula for the purposes of this judgment, who was removed from Poland to Ireland in August of 2021. It is argued that the Court must summarily return the child pursuant to the Child Abduction and Enforcement of Custody Orders Act of 1991 and Regulation 2201 of 2003, which implement the Hague Convention on Child Abduction [the Convention] in Ireland. The Respondent replies to the effect that she was entitled to take the child out of Poland in the manner she did on foot of an interim measure of the Polish Courts directing that Paula would have residence with her in the context of divorce proceedings. The Respondent also submits that the Applicant has not proven that he was exercising his custody rights in respect of his daughter and raises the defence of grave risk. Finally, she relies on the views of the child to persuade the Court to exercise its discretion not to return the child.
The Applicant and the Respondent married in 2012 in Poland. Paula was born in 2012. The parties separated in 2020 and divorce proceedings were initiated in Poland. The Respondent also has an older child from a previous relationship. The Respondent describes an unhappy marriage, in which she was subject to emotional bullying, economic control and assaults. The Applicant disputes this.
The Applicant avers that between late 2020 and August 2021 Paula lived with the Respondent in the same town as the Applicant and he enjoyed access with Paula during this time. The Applicant had access to his daughter under the supervision of a court-appointed guardian by an order of the relevant Polish Court from September 2016. The Respondent accepts that the Applicant did see the child, though states that this was not as frequent as originally intended.
By letter dated 17 th of August, 2021 the Respondent informed the Polish Court that due to her difficult financial situation and the need to provide for her children, she was moving to Ireland on 20 th of August, 2021. She provided the Court with a contact address and requested that future court hearings be dealt with remotely. At about this time, the Respondent removed Paula from Poland and brought her to the State, without the consent of the Applicant. Her older child remained in Poland.
On the 5 th of September, 2021 the Applicant made contact with the Respondent via Facebook. He states that it was at this time that he became aware that Paula had been removed to another country. On the 30 th of September, 2021 he made a written request to the Central Authority of Poland pursuant to the Hague Convention.
On the 29 th of December, 2021 on foot of an application by the Respondent, the Polish Court determined that the place of residence of Paula shall be “ any place of residence of her mother” until the conclusion of the divorce proceedings. The Polish divorce proceedings have been adjourned pending the outcome of these proceedings.
The objects of the Hague Convention, as set out in Article 1, are “(a) to secure the prompt return of the children wrongly removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” The Convention was created to provide fast redress when children are moved across state borders without the consent of both parents, and to mitigate the damage sustained to the child's relationship with the other parent by returning the child to her home. There, the courts where the child lives and where her school and medical records are held, and where witnesses are readily available, can make decisions about her welfare with the best information available. The Convention vindicates the rights of children and ensures comity between signatory states and bolsters the rule of law generally, providing a summary remedy against those who seek to take the law into their own hands.
The Convention requires that signatory states trust other signatories in terms of the operation of the rule of law in their respective nations. This international agreement addresses issues arising from the normal incidence of relationship breakdown which, given the relative ease of global travel and employment, can also lead to the re-settlement of parents in different countries. It is an important policy objective that signatory states vindicate the rights and best interests of the child and ensure that custody rights are respected in the event of a move which takes the child from her habitual residence and, potentially, from social and familial ties in that jurisdiction and from daily contact with the other parent.
The Regulation came into force in 2005 and is directly applicable in Ireland, not requiring domestic implementing provisions. Article 8(1) of the Regulation provides that the courts of the country of habitual residence of the child have jurisdiction in matters of parental responsibility. Article 10 provides that jurisdiction in cases of child abduction remains with the courts of the Member State where the child was habitually resident immediately prior to removal, until one or more specific events occur. Article 11 prescribes conditions which must be followed to obtain the return of a child who has been wrongfully removed or retained in a Member State other than that of her habitual residence. In most respects, it mirrors the provisions of the Convention but it also contains provisions which ensure that the requesting country (here, Poland) retains jurisdiction to review a refusal to return.
For the removal of a child to be considered wrongful pursuant to Article 3 of the Convention or under the Regulation, it must be shown that removal was in breach of the Applicant's rights of custody under the law of the State in which the child was habitually resident immediately prior to the removal,...
To continue reading
Request your trial