JJ v PJ

• Jurisdiction: Ireland
• Judge: Ms Justice Ní Raifeartaigh
• Judgment Date: 10 February 2017
• Neutral Citation: [2017] IEHC 68
• Docket Number: RECORD NO: 2016/34 HLC
• Court: High Court
• Date: 10 February 2017

[2017] IEHC 68

THE HIGH COURT

Ní Raifeartaigh J.

RECORD NO: 2016/34 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 O A CHILD

Between

J.J.

Plaintiff

AND

P.J.

Family – Child Abduction – Convention on the Civil Aspects of International Child Abduction, 1980 ('Hague Convention') – Regulation (EC) No 2201/2003("Brussels II bis Regulation") – Wrongful removal – Acquiescence to retention – Delay Defence of 'well settled' – Lack of subterfuge.

Facts: The applicant/father sought an order for the return of the child from the jurisdiction of Ireland to Poland where the said child was habitually resident with the plaintiff while the respondent/mother was exercising the visitation rights. The applicant asserted that the respondent removed their child without his consent from the creche and had taken that child to Ireland. The respondent presented some Facebook messages and alleged that those messages had amounted to the plaintiff's acquiescence to the retention of child in Ireland. The respondent also contended that the said child had well settled into Ireland with friends and extended family as the respondent had found a partner and gave birth to another child. The respondent thus argued that the said child was living happily with her, her partner and the child's half-sister, and they all lived together as a family unit.

Ms. Justice Ni Raifeartaigh refused to grant an order for the return of the child. The Court held that the respondent had wrongfully removed the child from the jurisdiction of Poland as at the time of the said removal, the applicant was exercising his custody rights over the child. The Court, however, held that based on the evidence of the child's school employees and the affidavit of the respondent, it was clear that the child had well settled into his environment, and he was a happy, outgoing and an intelligent child. The Court opined that the Facebook messages did not reflect the intent of the father to consent for the removal of the child. The Court observed that there was an unexplained delay of filing the present proceedings by the applicant to request for the return of the child, which went against the applicant. The Court held that when the child was removed from Poland, he was two years old and at present, he had spent half of his childhood in Ireland and was showing potential for excellent growth and development, which could not be hindered. The Court held that the major objective of the Hague Convention namely, the deterrence of child abduction, could not be fulfilled in the present case as it would have a devastating effect on the well being of the child.

JUDGMENT of Ms Justice Ní Raifeartaigh delivered on 10th February, 2017

1 This is a case in which the applicant, the father of a four year old boy, seeks the return of the child to Poland pursuant to the provisions of the Convention on the Civil Aspects of International Child Abduction, 1980 (the "Hague Convention"), the provisions of the Child Abduction and Enforcement of Custody Orders Act, 1991, and the Matrimonial and parental judgments: jurisdiction, recognition and enforcement, Regulation (EC) No 2201/2003 (the "Brussels II bis Regulation"). The mother of the child (the respondent) brought the child to Ireland in October, 2014.

Chronology

2 In this case, both parents furnished affidavits to the court and there was no oral evidence. In certain areas, the information provided by the affidavits was somewhat spartan. What can be established is as follows.

3 The mother and father married on the 23rd June, 2012. Their son, O, was born on the 19th August, 2012. The couple lived together in Poland with the child for a period of two years, until the 29th August, 2014.

4 The affidavit of the father says that on the 29th August, 2014, the mother abruptly left the home with the child. He reported them missing on the 30th August, 2014. He says that the mother attended the police department on the 1st September, 2014, 'whereon our child was placed under my care' from that date. The mother's first affidavit says that prior to moving to Ireland, she had moved out of the house 'as we started having arguments and he started drinking a lot and drank every day', and adds, '[b]efore I left Poland I went to the police station and a verbal agreement was reached that I would give [the child] to the applicant, as on the following day he was starting preschool/crèche'. Her second affidavit says that 'the police forced me to give the child to his father. The police told me that otherwise I would not be allowed to leave the police station'. From these rather terse descriptions, it is clear that there was some kind of rupture of relations around the 29th August, 2014 and that, with some involvement on the part of the police authorities, the child was placed in the care of the father from the 1st September, 2014.

5 From the 1st September, 2014, to the 3rd October, 2014, a period of four or five weeks, O was living with his father. The mother exercised weekly access to him. She says in one of her affidavits that the father limited her access to the child, and that the child would 'cry in panic' each time she was leaving him. In a further affidavit, the father disputes that he ever impeded the child's contact with his mother and says that he maintained 'extensive contact' between them. It is neither possible nor necessary to resolve this conflict of fact for present purposes.

6 The mother also exhibits certain Facebook messages that she received from the father during the period when the child was living with his father, following the police intervention. The messages are dated 5th September, 2014, and state as follows.

'JJ: Maybe we could meet :(

PJ: No

JJ: In that case I want to say goodbye

PJ: We'll meet on Sunday

JJ: I may not be here anymore by then

PJ: And where will you be?

JJ: I don't know. I'm leaving, I won't disturb you. be good parents to [O].

PJ: what do you mean, you won't look after him?

JJ: I can't cope with it, every time I see you I can hardly contain myself and I don't want to hurt him in a way that he won't know who his daddy is

PJ: So if you don't want to see me, you can collect [O] from [name], maybe it will be easier for you, I don't want to deprive you of your rights, because you are the father

JJ: I'm a complete asshole. That's a one more reason why I don't want to see him.

PJ: He will always know you're his daddy

JJ: and how will I look him in the eyes in the future. I can't live like this

PJ: Whose eyes?

JJ: [O]'s

PJ: What are you saying? Are you sober?

JJ: I haven't drank alcohol for one and a half weeks now. I was hoping that you would give me one more chance. Now I'm alone with debts and I lost my life, you have no worries because you have no debts. I want to ask you for only one thing- please visit my parents or bring [O] for them to see him from time to time

PJ: But you can sell the car and pay most of the debt

JJ: I love [O] and I love you. All the rest. I don't care. I'd rather escape all this. Raise him well and if you'll want to you will tell him the truth'

The father does not say anything about these messages in an affidavit sworn by him subsequent to the affidavit in which the mother exhibits these messages. The Court has no context to these messages, either from the mother or the father.

7 The mother also says on affidavit that 'after we broke up', the father signed the application for issuing an identity document for O, which was necessary for the child to go abroad, which she says indicates an awareness on his part of her intention to travel abroad. She dates this as being 'in August/September 2014'. The date of her leaving the family home was the 29th August, 2014, as referred to above. The father says that the travel documents were signed in order to allow a family holiday in the Czech Republic.

8 The father's affidavit indicates that on the 3rd October, 2014, the mother removed the child from his crèche without the consent of his father, under the pretext that the child had a medical appointment. On the 4th October, 2014, the mother sent a text to the father, saying 'Do not look for me. I'm far away. We will get by'. The father immediately notified the police on the same date and filed a missing persons report on the same day. The police later informed him that the mother and child had travelled to Ireland.

9 The father brought proceedings in the Polish courts on the 28th October, 2014. On the 28th November, 2014, a Family and Minors Division of the District Court in Zywiec made an order declaring that the mother had no consent to remove the child and that the father had full parental authority and should use the applicable law to return the child to Poland.

10 On the 14th February, 2015, the father completed a document entitled 'Request for Return'.

11 He says that during 2015 he became concerned with the lack of progress on the application and that he engaged professional legal representation to manage the process.

12 The applicant exhibited a letter from his lawyers dated the 8th July, 2016, some 16 months after his application, which explains to some extent what had happened in the interim period. It says that 'the initial proposal with authorisation' was sent to the Polish authorities in April 2015, and that in the absence of a response 'we wrote an email' in November 2015 and it turned out that the application had formal defects. Documents were sent again by email on the 2nd December, 2015, but again there were technical problems and on the 25th January, 2016, the applicant sent a request along with a power of attorney. There is no evidence of the applicant having...