M.S. v A.R

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 21 June 2018
• Neutral Citation: [2018] IECA 181
• Date: 21 June 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 181 [2018/72]

[2018] IECA 181

THE COURT OF APPEAL

Whelan J.

Irvine J.

Hogan J.

Whelan J.

Neutral Citation Number: [2018] IECA 181

[2018/72]

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 SIGNED AT THE HAGUE ON THE 25TH DAY OF OCTOBER 1980

AND IN THE MATTER OF COUNCIL REGULATION (EC) NO. 2201/2003 OF THE 27TH NOVEMBER 2003

BETWEEN

M.S.

Applicant/Respondent

AND

A.R.

Respondent/Appellant

Summary return – Intolerable situation – Minors – Appellant seeking to appeal against the summary return of two minors to Poland – Whether return would expose the children to an intolerable situation

Facts: The appellant (the mother) appealed to the Court of Appeal from the judgment and orders made in the High Court on 29th January 2018 directing the summary return of two minors to Poland pursuant to the Hague Convention 1980. The mother was self-represented and her notice of appeal was wide ranging. The essential grounds included that: (i) the children were settled in Ireland; (ii) the older child objected to a return to Poland; (iii) the respondent (the father) did not have rights of custody under the laws of the courts of Ireland; (iv) the children moved to Poland for one year only; and (v) return would expose the children to grave risk of physical or psychological harm or otherwise an intolerable situation within the meaning of Article 13 of the Hague Convention.

Held by Whelan J that the trial judge erred in imposing a requirement that grave risk of an intolerable situation had to be proven before discretion could be exercised to refuse a return to Poland arising from the proven objection of the older child to being returned to Poland. Given the close relationship between the siblings and the fact that they provide important familial continuity for each other, in circumstances where the objections of the older child warranted that his summary return to Poland be refused, Whelan J was satisfied that to return the younger child alone, severing her from her mother and only sibling, would place her in an intolerable situation within the meaning of Article 13(b) of the Hague Convention. Whelan J held that the exercise of discretion in this case favoured refusing a summary return of the children to Poland.

Whelan J held that she would allow the appeal and substitute for the judge’s order an order dismissing the father’s application for the return of the children to Poland.

Appeal allowed.

JUDGMENT of Ms. Justice Máire Whelan on the 21st day of June 2018

1 This is an appeal from the judgment and orders made in the High Court on 29th January 2018 directing the summary return of two minors to Poland pursuant to the Hague Convention 1980.

2 This appeal concerns two young children who will be referred to hereinafter, for the purposes of protecting their anonymity, as Jan and Lena. Jan was born in April 2010. His sister Lena was born in February 2013. They are now aged 8 years and 2 months and 5 years and 4 months respectively.

3 The respondent is the father and the appellant is the mother of the minors. The father and mother were never married to one another. The father was born in Poland in 1983. At the age of about 23 he came to Ireland and resided here until mid-November 2015. The mother was born in Poland in 1990. She came to Ireland at the age of 17 in 2008. She has been resident in this jurisdiction ever since. The children were born in Ireland. At all material times the parties and children were resident in Ireland until mid-November 2015 when the relationship between the parents broke down.

4 In mid-November 2015 the father, with the knowledge and consent of the mother, took the children to Poland. However, there is a significant dispute between the parents as to the circumstances surrounding the removal of the children from Ireland and, in particular, the duration for which it was intended that they would reside in Poland. On the father's part it is contended that the departure from Ireland was permanent. The mother contends that the children were to stay in Poland on a temporary basis only. For the purposes of this appeal it is not necessary to reach any conclusion on this issue.

5 The children resided in Poland under the care and control of the father from November 2015 for a period of approximately one year. During that time the mother continued to reside and work in Ireland where she has permanent employment. She maintained telephone and Skype contact with the children. She visited Poland on a number of occasions including in February, May, September and November 2016. She alleges that her access to the children was impeded. She sought to bring the children back to Ireland in the summer of 2016 and purchased airline tickets but the father never agreed to their return to Ireland.

6 In early November 2016, almost a year after the children had travelled to Poland, the mother instituted Hague Convention proceedings in Poland seeking the summary return of the children to Ireland. The proceedings were dismissed by the Polish courts on 21st December 2016 and she appealed. Before the appeal could be progressed she removed the children from Poland and returned to Ireland with them on 7th January 2017. Her appeal in the Hague Convention proceedings was ultimately dismissed by the Polish court on 23rd March 2017.

7 It is not in contention that on 7th January 2017, at the date of removal by the mother, the children were habitually resident in Poland. The removal took place without the father's knowledge or consent.

Rights of custody in Poland

8 Under Polish law the father and mother are the holders of equal rights of custody. On 12th November 2016 the father instituted proceedings before the District Court in Bielsko-Bia ³a, Poland, seeking parental custody of the minors. That case was adjourned generally pending determination of the mother's Hague Convention proceedings before the Polish courts. It appears from the documentation exhibited that no determinations or orders of any kind were made in the custody proceedings before the Polish District Court. By the time the mother's Hague Convention proceedings concluded before the Polish courts in late March 2017 the children were no longer resident there.

Mother self-represented

9 An unusual feature in this case is that the mother had no legal representation either in the High Court or at the appeal hearing though she was assisted by a McKenzie friend, Mr. Ligezowski, a Polish lawyer.

High Court Judgment

10 Having heard the case on affidavit and having considered the report of the court-appointed psychologist Dr. N., concerning the objections of Jan to being returned to Poland, the trial judge delivered a very comprehensive judgment on 29th January 2018. He found that at the date of removal of the children on 7th January 2017 they were habitually resident within the jurisdiction of the courts of Poland for the purposes of Article 3 of the Hague Convention. That finding is not appealed against. The trial judge was satisfied that the father was, under applicable Polish law, the holder of rights of custody within the meaning of Article 3 of the Hague Convention with regard to both children. After extensively analysing the relevant jurisprudence in light of the legal arguments raised by the respondent he directed the summary return of the minors to the jurisdiction of the courts of Poland pursuant to the Hague Convention. The mother appeals that decision.

The law

11 There are two primary instruments governing the abduction of children to this State of relevance in the instant case. The first is the Hague Convention on the Civil Aspects of International Child Abduction signed at the Hague on the 25th October 1980 (‘the Hague Convention’). The Hague Convention was incorporated into Irish law by the provisions of the Child Abduction and Enforcement of Custody Orders Act 1991. The second relevant measure is Council Regulation (EC) No. 2201/2003 of the 27th November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (‘the Brussels IIbis Regulation’).

Hague Convention 1980

12 The preamble to the Hague Convention provides that its purpose is ‘to protect children internationally from the harmful effects of their wrongful removal or retention’. Under Article 3 the taking or keeping of a child is ‘wrongful’ if it is in breach of ‘rights of custody’. The same applies under the Brussels IIbis Regulation, which complements and takes precedence over the Hague Convention as between all but one of the member states of the European Union.

13 One of the functions of ‘rights of custody’ is to ensure that long-term decisions regarding a child's future are taken in the country where he or she was habitually resident immediately beforehand and not in the country to which he has been taken.

Article 12

14 The respondent asserts that all the factors necessary to trigger a summary return pursuant to Article 12 are established in this case. The father is the holder of rights of custody and was exercising same prior to the removal of the children from Poland. The removal breached those rights. The children were habitually resident in Poland. It is argued that the appellant has misconstrued the discretionary element in Article 12 which only arises if the proceedings are instituted over one year after the wrongful removal. In this case the Special Summons issued on 14th August 2017. I am satisfied as a matter of construction that the word ‘now’ in Article 12 refers to the date of commencement of the proceedings. Accordingly, the second sentence of Article 12 is not engaged in this case.

15 By order of the High Court perfected on 1st November 2017 it was directed pursuant to Article 11(2) of the Brussels IIbis...