M.J v S.O.

• Jurisdiction: Ireland
• Judge: Ms. Justice Ni Raifeartaigh
• Judgment Date: 16 January 2018
• Neutral Citation: [2018] IEHC 10
• Docket Number: Record No. 2017/20 HLC
• Court: High Court
• Date: 16 January 2018

[2018] IEHC 10

THE HIGH COURT

FAMILY LAW

Ni Raifeartaigh J.

Record No. 2017/20 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

AND

IN THE MATTER OF

M.J.

APPLICANT

AND

S.O.

RESPONDENT

Family - Child Abduction and Enforcement of Custody Orders, Act, 1991 - Art. 3 of the Hague Convention on Civil Aspects of International Child Abduction ('Hague Convention') - Wrongful removal of children- Burden of proof - Habitual residence - Best interests of the child

Facts: The applicant/father sought a declaration pursuant to art. 3 of the Hague Convention for wrongful removal of the children by the respondent/mother and also sought an order for the return of children to Poland pursuant to art.12 of the Convention. The key issues were as to whether the habitual residence of the children changed, when they moved from Ireland to Poland due to certain circumstances and the children's objections to their return to Poland. The applicant contended that the habitual residence of children was Poland, as the family intended to stay forever in Poland.

Ms. Justice Ni Raifeartaigh refused to grant the desired relief sought by the applicant. The Court held that the burden of proof lay upon the applicant to establish the habitual residence of the children was Poland and the Court was not satisfied with the evidence relied upon by the applicant in that regard. The Court took into account the documents exhibited by the respondent with regard to the assault by the applicant on the respondent. The Court opined that there was no wrongful removal under art. 3 of the Convention.

Judgment of Ms. Justice Ni Raifeartaigh delivered on the 16th January 2018

Nature of the Case

1 This is a case in which the applicant, the father of two children, seeks a declaration pursuant to article 3 of the Hague Convention on the Civil Aspects of International Child Abduction that the children were wrongfully removed from Poland by the respondent, their mother, in February 2017, together with an order pursuant to article 12 of the Convention for their return to Poland. The key issues raised relate to the habitual residence of the children at the time of their removal from Poland, and the children's objections to returning to Poland.

Relevant facts/chronology

2 The parties, who are both Polish nationals, entered into a relationship when they were teenagers. Their eldest child, a boy named W, was born in Poland on the 3rd November, 2006. At that time, the mother was 18 years of age. The applicant father, the respondent mother and the child, W, moved to Ireland shortly after the child's birth. Their second child, a girl named G, was born on the 16th July, 2009 and holds an Irish passport. The parents never married, but the applicant was appointed guardian of the children by a District Court order dated the 29th October, 2014 pursuant to Section 6A of the Guardianship of Infants Act, 1964, as amended.

3 They lived in Ireland thereafter until. the applicant took the children to Poland in July 2016. Accordingly, W lived in Ireland for the first ten years of his life, and G for all of her life, until they went to Poland, where they spent approximately 6 months before returning to Ireland. It is clear that until July 2016, the habitual residence of the children was Ireland. A key question for the court is whether the habitual residence of the children changed between July 2016 and February 2017, being the period when they lived in Poland.

4 The evidence of the parties was received by the court in the form of sworn affidavits. The procedure is a summary procedure and there was no oral evidence. The respondent mother said that while they lived together in Ireland, the applicant was emotionally and physically abusive to her. She says that she had little English and was at home with the children, but that the applicant did not allow her to have a key to their home and controlled the children's allowance that she received. She describes an incident in April 2014 during which she was assaulted by the applicant and suffered a broken finger. She exhibited contemporaneous medical notes which state that she had told the doctors at the time that she was assaulted by her boyfriend, was pushed backwards and landed on her left ring finger, and was punched to the head. It is clear that she received medical treatment for an injury to her finger at that time. She says that after this incident, she left the family home with the children and went to live in a refuge for two months. She exhibits a letter from an Irish refuge, which confirms that she came to them for admission on the 11th April, 2014 and had given an account of the above assault to them also. The mother also exhibits a letter from an Irish domestic violence information resource centre, which confirms that she first made contact with them on the 22nd April 2014 for support in relation to issues of domestic abuse, and that she had reported to them that she had been the subject of financial abuse, emotional manipulation, social isolation and physical abuse. The letter indicates that she secured crisis accommodation in a refuge in April 2014, went to court to obtain certain court orders, and ultimately found private rented accommodation and secured employment. Another exhibit was a District Court maintenance order dated the 19th June, 2014. The applicant denies all allegations of abuse and says he does not accept that there was any justifiable reason why she should have attended refuge.

5 The respondent mother says that from the 28th June, 2014 onwards, she was living with the two children in rented accommodation in Ireland and working as a cleaner. They were living in this manner, away from the respondent, for a period of two years. The applicant does not make clear whether or not he accepts that they were living separately in Ireland during this time; at times, he appears to give the impression that they were living together during this period. He disputes that she worked during her time in Ireland.

6 There is a conflict of evidence as to what happened next. It is undisputed that the respondent took the children to Poland in July 2016. However, the mother's reasons for doing so and her intentions at that time are disputed by the applicant father. She says that, having suffered injuries in a car accident on the 21st May 2016, she went back to Poland with the children to stay with her mother to recuperate, on a temporary basis, but that it was always her intention to return to Ireland. She says that her recovery took longer than expected, and so she enrolled the children in a Polish school in September 2016. She exhibited a letter from a cleaning company, dated the 24th July, 2017, which says that she is currently an employee and that since May 2017 she was absent from work through injury. Some medical notes were exhibited in relation to her medical complaints, but it was not clear precisely what these were or what had caused them. The mother says that the applicant also moved back to Poland in August (or September) 2016 and that he exercised access to the children every second weekend, but she says that their main place of residence was with her in her mother's home. She says that the children did not settle well in Poland and that she informed the applicant that she intended on returning to Ireland from an early stage as they were not settling and she was not receiving any financial assistance or social welfare in Poland. She says that he was not happy with this and entered her mother's house and stole her passport as well as the children's passports from the house, which she reported to the local police.

7 The applicant in his affidavit says; 'we resided in Ireland from late 2006: However, when we returned to Poland in July 2016 it was our intention to permanently reside there…' Thus, he says nothing about their living apart while in Ireland, and gives the impression that...