M.S. v A.R

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 29 January 2018
• Neutral Citation: [2018] IEHC 45
• Docket Number: [2017 No. 23 HLC]
• Court: High Court
• Date: 29 January 2018

[2018] IEHC 45

THE HIGH COURT

FAMILY LAW

McDermott J.

[2017 No. 23 HLC]

BETWEEN

M. S.

APPLICANT

AND

A. R.

RESPONDENT

Family law – International law – Council Regulation (EC) No. 2201/2003 – Hague Convention on the Civil Aspects of International Child Abduction, 1980 ('Hague Convention') – Child Abduction and Enforcement of Custody Orders Act, 1991 – Wrongful removal – Grave risk – Best interests – Breach of rights of custody

Facts: The applicant/father filed an application for the return of his children to Poland pursuant to art. 12 of the Hague Convention and sought a declaration that the respondent/mother had wrongfully removed the children from Poland. The applicant contended that the respondent/mother had wrongfully removed the children out of Poland without the consent of the applicant as required under art. 13(a) of the Hague Convention and in violation of the orders of the Polish Courts. The respondent contended that the children would not be happy with their father and would be subjected to psychological or physical harm or would be placed in an intolerable situation if returned to Poland.

Mr. Justice McDermott granted the declaration that the respondent had wrongfully removed the children from Poland to Ireland under art.3 of the Hague Convention. The Court also held that the children should be returned to Poland. The Court stated that the applicant had a legal right of custody in respect of the children under Polish Law. The Court stated that the applicant did not consent to the removal of the children to Ireland. The Court further held that the allegation made by the respondent in respect of the issue of grave risk was unsupported by any objective evidence. The Court stated that if the Polish custody proceedings were to be re-entered following the Hague Convention proceedings, then the Court would like to be informed about the actual date of such hearing before finalising the order under art.12.

JUDGMENT of Mr. Justice McDermott delivered on the 29th day of January, 2018

1 This is an application pursuant to the Hague Convention on the civil aspects of international Child Abduction signed at the Hague on 25th October, 1980 (the Convention) as applied by Council Regulation (EC) No. 2201/2003 of 27th November, 2003 (Brussel II bis) (the Regulation) for the return of two children A.S. born in Dublin on 7th April, 2010 and M.S. born on 15th February, 2013. The applicant and the respondent are the natural parents of both children.

2 Both parents are Polish nationals. In May 2007 the applicant came to Ireland. On 21st August, 2008 the respondent came to Ireland and they commenced living together. They come from the same area in Poland. In November 2015 unhappy differences arose between the applicant and the respondent as a result of which the applicant decided to return to Poland. He wished to take the two children with him. He claims that the respondent gave her consent to both children living permanently with him in Poland. The respondent disagrees and contends that she did not agree to the permanent removal of the children to Poland. She states that she consented to their return to Poland for a temporary period until such time as she could establish herself in more secure employment so that the children could return to Ireland and be with her.

3 On 10th November, 2015 the applicant and the children flew to Poland with the respondent's consent. The applicant states that prior to leaving Ireland he and the respondent attended at the local social welfare office and informed the relevant authorities that he and the children would be leaving the country. He gave up his social welfare benefits. He states that he and the respondent packed his car with his belongings and the children's belongings including their toys and summer clothes. Having conveyed the children to Poland he returned and brought the car to Poland on 13th November, 2015. They informed A.S.'s school in Ireland that he was leaving the country and moving to a school in Poland. The respondent drove him and children to the airport and walked them to the departure gates. He claimed that she knew they would not be coming back and that he and the children would be living in Poland.

4 The applicant states that on 13th November, 2015 three days after the children's departure to Poland the respondent sent him a text message asking if he had made arrangement for A.S.'s new school in Poland. On 14th November she sent a further message stating that she would send trousers to Poland for A.S. to wear to school. On 21st November, the applicant sent the respondent a text asking her to provide financial help for the children. She replied 'of course I told you I would help with the money. Just as much as I can. How much do you want?'. The applicant states that he requested a sum of €250.00 per month in respect of each child. In addition on 24th November, the applicant stated that he wished to take A.S. to a speech therapist to which the respondent agreed. On the same date the respondent sent him a message asking him to swear that he would take care of the children.

5 The applicant also claims that prior to their departure for Poland the respondent commenced a relationship with T.L. She had a new job as a courier and flyer distributor. This affected her plans to visit Poland over Christmas. He claimed that he offered to pay for her flights but she declined. However, the respondent visited Poland in February, May and August 2016.

6 On arrival in Poland the applicant and the children lived initially with his family and then in an apartment near the parties' home town. A.S. attended kindergarten. The applicant? enrolled M.S. to commence in kindergarten in September 2017. The children visited their paternal grandparents every weekend and initially visited the respondent's parents. The children spoke Polish and M.S. was initially looked after by the applicant's mother. In November 2015 the applicant commenced work. He entered a one year lease agreement for an apartment from 1st April, 2017 to which they moved.

7 The respondent claims that she originally came to Ireland intending to live and work here permanently. She denied that the breakup of her relationship with the applicant was because of her relationship with a third party. She stated that the reason for the breakup was his failure to provide for the family and he recorded a number of criminal convictions.

8 The respondent states that the applicant knew from the beginning that the children were to stay in Poland on a temporary basis. They initially received temporary residence status as certified in documents dated 14th August, 2016 which would continue until 1st April, 2017. They could have been registered for permanent residence following the applicant's return with the children to his parents' home in their home village.

9 It is accepted that during the period in Poland the respondent maintained telephone contact with the children. She went to Poland three or four times to see them commencing in a period 21st – 26th February, 2016. In a visit between 10th – 14th May, 2016 the respondent requested that the children be allowed to return with her to Ireland. She bought airline tickets on two occasions. However, she claimed that when she arrived to take the children she was not allowed to see them. She exhibited tickets in respect of the children's proposed return dated 16th September, 2016.

10 The applicant states that he started work with a building company at the end of November 2015 and continued in that employment until February 2017. The applicant also states that he had employment from time to time as a car body repair specialist in Poland. He submitted evidence that this job was available to him on a long-term basis. However, the departure of the respondent and the children for Ireland caused him to follow them here to seek the children's return to Poland as a result of which he gave up that employment. During the course of these proceedings he obtained employment in Cork. The respondent and the children live in County Kildare.

Orders of the Polish Courts

11 On 2nd November, 2016 the respondent initiated an application before the Polish Courts seeking the return of the children to Ireland under the Hague Convention. This application was dismissed by the District Court at Bielsko-Biala on 21st December, 2016. The respondent appealed this decision to the Regional Court of the Bielsko-Biala – Department No. 2 Civil Affairs. The appeal was dismissed on 23rd March, 2017. The initial hearing before the District Court in Bielsko-Biala took place on 16th December, 2016. It resumed on 20th December. On the 16th December the applicant agreed to allow the respondent to take the children for the weekend in Poland on the basis that they would be returned to the applicant on the following Sunday or Monday. The decision of the Polish Court at first instance was delivered on 21st December. In those proceedings both parties had been legally represented.

12 In his first affidavit the applicant avers that the respondent took the children to her mother's home but did not return them to him. He saw the children at her parents' home over Christmas and New Year. The respondent refused to return the children when requested. The applicant took legal advice and was informed that under Polish law both parents have equal rights to custody in respect of their children and was also advised that he could not seek an order for their return in the proceedings which were then in being which were limited to issues under the Hague Convention.

13 Following the dismissal of the respondent's application under the Hague Convention which had alleged the wrongful removal of the children from Ireland to Poland he attended at the respondent's family home on 30th December, 2016 but she did not bring the children out to see him. He visited the house again on...