A.K v A.J

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 08 June 2012
• Neutral Citation: [2012] IEHC 234
• Court: High Court
• Date: 08 June 2012

K (A) v J (A)

FAMILY LAW

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 (EC) 2201/2003

AND

IN THE MATTER OF H. J. AND D. J. (CHILDREN)

BETWEEN

A.K.

APPLICANT

AND

A. J.

RESPONDENT

[2012] IEHC 234

[No. 11 HLC/2011]

THE HIGH COURT

FAMILY LAW

Child abduction

Habitual residence - Wrongful retention in 2008 - Children returning Christmas 2010 - Subsequently removal - Proceedings commenced in 2011 - Order of Polish District Court of 2012 - Whether children habitually resident in State in December 2010 - Whether wrongful removal - Whether exceptional circumstances - Whether children objecting to return to Poland - Whether children of age and maturity to take account of views - Delay in commencing proceedings - Discretion - S v J [2010] EWHC 1113 (Fam), [2010] 2 FLR 1257 and AU v TNU [2011] IESC 39, [2011] 3 IR 683 considered - Council Regulation (EC) 2201/2003, art 11 - Hague Convention on the Civil Aspect of International Child Abduction - Return of children refused (2011/11HLC - Finlay Geoghegan J - 8/6/2012) [2012] IEHC 234

K(A) v J(A)

Facts: The applicant, a Polish national, was the mother of two children. The children had come to visit the respondent father, also a Polish national, in 2008 at his accommodation in Dublin. The applicant contended that the boys had been wrongfully retained by the respondent following the visit and sought their return under the Hague Convention on the Civil Aspect of International Child Abduction and Council Regulation (EC) 2201/2003. The respondent resisted the application, claiming inter alia the children's habitual residence was now Ireland.

Held by Finlay Geoghegan J, that to succeed in the application the applicant had to demonstrate that the children were habitually resident in Poland, that they were removed/retained in breach of her rights of custody and that that her rights were affected by the removal/retention by the respondent.

Taking those points in turn and considering the facts of the case, the Court found that the respondent had failed to establish that the habitual residence of the children had changed to Ireland from Poland. The applicant had parental authority as well as a Court order obtained in Poland confirming the children's residence with her. She could not be said to have consented to the removal and thus her rights of custody had been affected. However, before making an order for return of the children, the Court considered it was appropriate to take account of the children's own views objecting to their return. AU v TNU [2011] IESC 39 followed.

The Court found that the lapse of time between the initial retention and the issuing of proceedings in Ireland was not due to the respondent and therefore a prompt return of the children was not appropriate. In addition, the Polish Courts had issued a first instance judgment allowing the children to remain in Ireland. As such, the application would be refused.

EEC REG 2201/2003 ART 11

EEC REG 2201/2003 ART 11(2)

HAGUE CONVENTION ON CIVIL ASPECT OF CHILD ABDUCTION ART 3

HAGUE CONVENTION ON CIVIL ASPECT OF CHILD ABDUCTION ART 18

HAGUE CONVENTION ON CIVIL ASPECT OF CHILD ABDUCTION ART 13

M (C) v DELEGACION PROVINCIAL DE MALAGA 1999 2 IR 363 1999 2 ILRM 103 1999 16 4846

A (REMOVAL OUTSIDE JURISDICTION: HABITUAL RESIDENCE), IN RE; S (E) v J (A) & L (P) 2010 2 FLR 1257 2010 EWHC 1113 (FAM)

B, IN RE 1993 1 FLR 993

S v S 2010 1 IR 370 2009/50/12704 2009 IESC 77

S (PA) v S (AF) 2005 1 ILRM 306 2004 45 10409 2005 FAM LJ 2

HAGUE CONVENTION ON CIVIL ASPECT OF CHILD ABDUCTION ART 12

U (A) v U (TN) 2012 1 ILRM 149 2011/48/13521 2011 IESC 268

M (CHILDREN) (ABDUCTION: RIGHTS OF CUSTODY), IN RE 2008 1 AC 1288 2007 3 WLR 975 2008 1 AER 1157

EEC REG 2201/2003 CHAP III S4

EEC REG 2201/2003 ART 11(8)

1 1. This application pursuant to the Hague Convention on the Civil Aspect of International Child Abduction ("the Convention") and Article 11 of Council Regulation (EC) 2201/2003 ("the Regulation") is in respect of two boys, H., born on 5 ^th June 2002, and now ten years of age, and D., born on 17 ^th September, 2004, who is now seven years old. The application is for the return of the children to the jurisdiction of the courts of Poland.

2 2. The applicant is the mother of the boys and the respondent is the father of the boys. The mother and father were never married to each other. They were in a relationship which appears to have ended some time after the birth of D. and before the summer of 2008.

3 3. The father came to Ireland in 2003 after the birth of H. and prior to the birth of D.. He has set up a small business which he continues to operate, apparently successfully, to the present time. Since approximately 2007, he has been in a relationship with B., a Polish woman. She is and has been for some years his partner. They were living together in Ireland prior to the summer of 2008. They now also have a daughter together, born in 2011.

4 4. The mother and the father both come from a relatively small town in Poland. The mother and the boys continued to live there after the father came to Ireland. The father contributed to the maintenance of the boys. There is a dispute as to the extent of same which is not relevant to any issue which this Court has to determine.

5 5. In June 2008, the mother agreed that the boys would come on holidays to stay with the father in Dublin. They were to return to Poland prior to the end of June. The father did not return the boys to Poland as agreed. The father retained the boys in Ireland without the consent of the mother in June 2008. Since that date, they have lived with the father and his partner, B. and have attended a local primary school in Dublin.

6 6. It is admitted, for the purposes of these proceedings, that the retention by the father of the boys in Ireland in June 2008 was a wrongful retention within the meaning of Article 3 of the Hague Convention. This wrongful retention forms part only of the basis of the mother's application for return.

7 7. The father took the boys to Poland for Christmas in December 2010. At the end of December 2010 or early January 2011, the father took the boys out of Poland and to Ireland without the consent of the mother. He states he arrived back in Ireland on 5 ^th January, 2011. On behalf of the mother, it is contended that this was a wrongful removal of the boys from Poland which remained the country of their habitual residence in December 2010. I propose referring in the judgment to this removal as of December 2010. Nothing turns on whether the father and the boys left Poland at the end of December 2010 or in the first days of January 2011. The father disputes that this was a wrongful removal of the boys from Poland within the meaning of Article 3 of the Convention as he contends that the mother did not seek to prevent them leaving and by this time, the boys were no longer habitually resident in Poland. He contends that they had acquired a habitual residence in Ireland. On behalf of the mother, it is also contended that such removal was in breach of rights of custody then held by the courts of Poland by reason of extant custody proceedings.

8 8. The present proceedings are unusual in a number of respects. First, the father has been living in Ireland since 2003, the initial wrongful retention commenced in June 2008, and these proceedings were only commenced by the mother on 31 ^st May, 2011, pursuant to an authorisation signed on 6 ^th April, 2011. Secondly, even after the commencement of the proceedings, the fixing of a hearing date was exceptionally delayed by reason, primarily, of difficulties in communication between the mother in Poland who speaks no English and her Irish lawyers. Thirdly, whilst the father had been legally represented up until the date of the hearing, the Court granted his lawyers leave to come off record on the morning of the hearing. The Court was satisfied that the father did not comply with agreements made with the lawyers in relation to his representation and failed to give appropriate instructions. The father represented himself at the hearing with the assistance of an interpreter. However, understandably, he was not familiar with the complex legal provisions and principles at issue. Fourthly, since September 2008 there have been custody proceedings initiated by the mother before the Polish District Court - in K. - in which both parties participated and in which by a decision of 16 ^th February, 2012, parental care for the boys was given to the father. Fifthly at the hearing on 29 ^th March, 2012, the Court was asked not to give its judgment until such time as the justification of the Polish District Court - in K. -for its decision of 16 ^th February, 2012, was translated into English and made available to the Court. The justification had only become available to the parties in the preceding days. At the request of counsel for the mother, a further short hearing was held on 22 ^nd May to enable submissions be made in relation to the justification and the fact of the appeal lodged by the mother against the order of the Polish District Court of 16 ^th February, 2012.

9 9. The evidence in this application included all the affidavits sworn by the parties and exhibits thereto; the report of Dr. Byrne-Lynch dated 12 ^th February, 2010, following her interviews with the boys on 25 ^th and 31 ^st January, 2012; oral evidence from Dr. Byrne-Lynch; oral evidence of the father and the mother on limited cross-examination of some matters deposed to in the affidavits and the petition, orders and justification of the Polish District Court and notice of appeal therefrom.

10 10. The Court, in this application, is exercising a limited jurisdiction. It is not...