Li (P) v La (E)

JurisdictionIreland
JudgeMr Justice John Edwards
Judgment Date18 December 2009
Neutral Citation[2009] IEHC 585
CourtHigh Court
Date18 December 2009

[2009] IEHC 585

THE HIGH COURT

Record No: 27 HLC/2009
Li (P) v La (E)
FAMILY LAW
IN THE MATTER OF THE CHILDREN ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991
AND IN THE MATTER OF THE HAGUE CONVENTION
AND IN THE MATTER OF COUNCIL REGULATION 2201/2003
AND IN THE MATTER OF A.J.LI. AND J.P.LI. (CHILDREN)

BETWEEN:

P.LI.
APPLICANT

AND

E.LA.
RESPONDENT

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION (HAGUE CONVENTION) ART 12

EEC REG 2201/2003 ART 11(2)

N (P) v D (T) UNREP EDWARDS 4.3.2008 2008/46/9909 2008 IEHC 51

H (M S) v H (L) 2000 3 IR 390 2001 1 ILRM 448 2000/10/3834

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION (HAGUE CONVENTION) ART 13(B)

K (R) v K (J) 2000 2 IR 416 2003 FAM LJ 30 1998/22/8496

FRIEDRICH v FRIEDRICH 1996 78F 3D 1060

N (M) v N (R) UNREP SHEEHAN 1.5.2009 2009 IEHC 213

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 24(3)

FAMILY LAW

Child abduction

Hague Convention - Grave risk - Wrongful removal - Habitual residence - Assessment of children by psychologist - View expressed by children that they did not want to return with applicant - Welfare of children - Relevant principles to be applied - Test to be applied - Meaning of intolerable situation - Degree of harm - Meaning grave risk - Whether risk of physical or psychological harm - Whether children at grave risk - Whether allegation of physical abuse proven - Whether children's views determining factor - N v D [2008] IEHC 51, (Unrep, HC, Edwards J, 4/3/2008); In re A (A Minor) (Abduction) [1988] 1 FLR 365; CK v CK [1994] 1 IR 250; RK v JK [2000] 2 IR 416; MSH v LH [2000] 3 IR 390, [2001] I ILRM 448; Friedrick v Friedrick (1996) 78F 3d 1060 and MN v RN [2009] IEHC 213, (Unrep, HC, Sheehan J, 1/5/2009) considered - Charter of Fundamental Rights of the European Union, art 24(3) - Hague Convention on the Civil Aspects of International Child Abduction 1980, article 12 - Council Regulation (EC) No 2201/2003, articles (11)2 and 13(b) - Order for return of children granted (2009/27HLC - Edwards J - 18/12/2009) [2009] IEHC 585

LI (P) v LA(E)

1

JUDGMENT of Mr Justice John Edwards delivered on the 18th of December, 2009.

Introduction
2

This written judgment is supplemental to and in elaboration of a brief ex-tempore judgment delivered in this matter yesterday, the 17 th of December, 2009 in consequence of which I made certain Orders. I indicated at the time that as the matter had proceeded in the absence of the respondent, and as judgment was being delivered in her absence, that I would make available a detailed written judgment setting out my reasons for making the Orders that I have seen fit to make. I now do so.

Background
3

The applicant is the father and the respondent is the mother of the children named in the title hereto (hereinafter "the children"). They are not married to each other. The applicant is German and the respondent is Polish. The children were both born in Poland and are Polish citizens. Moreover, it is accepted on all sides that the children's place of habitual residence is Poland. The older boy, A.J., was born on the 5 th of March 1999 and is now aged 10 ½. The younger boy, J.P., was born on the 15 th of November 2002 and is now aged 7.

4

The applicant is married to a German woman with whom he has two children, a son who is now in his twenties and a daughter now aged 18. The evidence as to how he became involved with the respondent is not at all clear but I am prepared to infer on the limited information that I have that he most likely became estranged from his wife at some point and then took up with the respondent during this estrangement. I am further prepared to infer that both the applicant and the respondent, and the children, lived together as a family unit in Poland for some years, until unhappy differences eventually developed between the applicant and the respondent, in response to which the applicant moved back to Germany where he now lives. It is somewhat unclear as to when precisely he moved back but the Court is under the impression that it was in or about 2006/2007.

5

If it be the case that the Court, in attempting to understand the distant historical background to this case, has drawn an incorrect inference or inferences, I do not believe that such inaccuracies would have any implications for the substance of my decision in this case as my decision is not based in any way upon the distant historical background but rather upon recent facts which I am satisfied are well established.

6

At the present time the applicant appears to be reconciled with his wife and is once again living with her. However, he maintains that he has at all times desired to maintain a relationship with his Polish children and to be a part of their lives.

7

The evidence before me is that as far back as 2006/2007 the applicant and the respondent were experiencing difficulties to such a degree that they were unable to agree on a variety of issues, including basic guardianship issues and in particular custody and access arrangements with respect to their children. Once again, the exact position is a little unclear. However, the Court has gathered from the documentation filed in the case that some sort of a joint custody arrangement may have been in place initially, although one that was evidently not working.

8

Then in February 2007 the applicant removed the children from Poland and brought them to Germany to live with him there. At approximately the same time both parties, respectively, separately commenced proceedings before the family law courts in Poland, each seeking sole custody of the children and to regulate or limit access by the other party. However, as the respondent was also claiming that the applicant had abducted the children without her consent and removed them to Germany, and as she was invoking the provisions of the Hague Convention to secure their return, all custody proceedings were stayed pending the outcome of her application for relief under the Hague Convention. The respondent was successful in securing the return of the children from Germany to Poland and they were returned on the 4 th of August, 2007.

9

There have also been other disputes between the parties, about maintenance (or "alimony" as it is referred to in the documentation) and alleged intolerable behaviour on both sides. For his part, the applicant contends that the respondent is mentally unstable and an alcoholic. The respondent, in turn, contends that "because of the behaviour of the boys' father, life in Poland became a nightmare for me," (although, apart from alleged failures on the part of the applicant to live up to his financial responsibilities towards the respondent and the children, the exact nature of the nightmarish "behaviour" is otherwise unspecified). The Court merely notes that these disputes exist, or have existed. The Court cannot, however, be expected to resolve them or to decide as between the parties respective contentions on an application such as the present one.

10

Following the return of the children the previously stayed custody proceedings then duly went ahead. It is clear from court records exhibited before me that at an early stage the parties separate proceedings were consolidated or co-joined so as to effectively treat them as a claim and counterclaim respectively. By an Order of District Court for Warsaw dated the 13 th of December 2007 (exhibited before me as exhibit "B" to the affidavit of the applicant sworn on the 16 th of September, 2009, together with a certified translation) the applicant was granted an interim order "during the time of the court proceedings" giving him "the right to personal contact" (i.e. access) with the children on the 1 st and 3 rd weekends, respectively, of every month from 9 am to 6pm on both Saturdays and Sundays, to take place "at the place of stay of children in the presence of their mother." Further the Court resolved to decline (i.e. it refused) a cross-motion by the respondent seeking the Court's consent for the children to travel to Ireland with her between 19.12.2007 and 03.01.2008.

11

In furtherance of his application for custody the applicant sought, and, it is understood, was granted an Order from the Court (although it is not exhibited) directing an assessment of the children by an appropriate health professional, as he claims to have been extremely concerned about their welfare in the care of the respondent. The applicant has stated that this assessment was due to take place on the 6 th of October 2008. However, on the 17 th of September 2008, and before the scheduled assessment could take place, the respondent abducted the children and removed them to Ireland without notice to, or the permission of, either the applicant or of the District Court in Poland.

12

Shortly after the respondent and the children arrived in Ireland the respondent sent an SMS text message to the applicant saying that she had taken the children to Ireland. However, she did not provide her exact whereabouts, and did not respond to communications from the applicant so that he was initially unable to confirm that she was telling the truth. The applicant later established through the Border Police in Warsaw that the respondent, accompanied by the children, had taken an aeroplane to Dublin on the 17 th of September 2008. The applicant subsequently, and within the 12 month period specified in Article 12 of the Hague Convention, initiated the present proceedings.

13

In the meantime, and on the 13 th of January 2009, the pending custody proceedings came up for hearing before the District Court Judge Dorota Szostak sitting in the District Court in Piaseczno, III Family and Minors Department. The case was called but there was a failure on the part of the respondent to appear....

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