M S v A R

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay
• Judgment Date: 19 February 2019
• Neutral Citation: [2019] IESC 10
• Court: Supreme Court
• Docket Number: [Appeal No: 2018/115]
• Date: 19 February 2019

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) NUMBER 2201/2003 OF 27 NOVEMBER 2003

AND IN THE MATTER OF A S AND M M S, CHILDREN

BETWEEN

M S

APPLICANT

AND

A R

RESPONDENT

[2019] IESC 10

Finlay Geoghegan J.

O'Donnell Donal J.

McKechnie J.

MacMenamin J.

Dunne J.

[Appeal No: 2018/115]

THE SUPREME COURT

Habitual residence – Return – Article 13 of the Hague Convention on the civil aspects of international child abduction – Applicant seeking the return of children to Poland – Whether the Court of Appeal was in error in its approach to the exercise of discretion pursuant to Article 13 of the Hague Convention

Facts: This was an appeal from an order of the Court of Appeal of 2 July 2018, which allowed an appeal from an order of the High Court made on 16 February 2018, that the children named in the title be returned to the jurisdiction of the courts of the Republic of Poland. The proceedings were an application brought by the father of the children pursuant to the Hague Convention on the civil aspects of international child abduction (the Convention), as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act 1991 and Council Regulation (EC) No 2201/2003 of 27 November, 2003, for the return of the children to Poland, as the Member State of their habitual residence. The respondent was the mother of the children.

Held by Finlay Geoghegan J that the Court of Appeal was in error in its approach to the exercise of discretion pursuant to Article 13 of the Convention.

Finlay Geoghegan J held that the appeal should be allowed in part and that so much of the order of the Court of Appeal as dismissed the proceedings should be vacated. Finlay Geoghegan J held that in lieu thereof, there would be an order pursuant to Article 13 of the Convention that the application for the return of the children to the Republic of Poland be refused. Finlay Geoghegan J held that there would also be an order pursuant to Article 11(6) of the Regulation for the transmission of the relevant papers to the courts in Poland and for the release of papers by the parties to their legal representatives in Poland and their use in any future court proceedings in Poland relating to the children, the subject matter of the proceedings.

Appeal allowed.

Judgment of Ms. Justice Finlay Geoghegan delivered on the 19 ^th day of February, 2019.

1 1. This is an appeal from an order of the Court of Appeal (Irvine J., Hogan J. and Whelan J.) of 2 July 2018, which allowed an appeal from an order of the High Court (McDermott J.) made on 16 February 2018, that the children named in the title be returned to the jurisdiction of the courts of the Republic of Poland. The order of the High Court was made for the reasons set out in a written judgment delivered on 29 January 2018: [2018] IEHC 45. The order of the Court of Appeal was made for the reasons set out in judgment of Whelan J., delivered on 21 June 2018: [2018] IECA 181. In substance, it refused an order for the return of the children.

2 The proceedings are an application brought by the father of the children, to whom I will refer as A and M, pursuant to The Hague Convention on the civil aspects of international child abduction (‘the Convention’), as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act 1991 (‘the 1991 Act’) and Council Regulation (EC) No 2201/2003 of 27 November, 2003 (‘the Regulation’), for the return of the children to Poland, as the Member State of their habitual residence. The respondent is the mother of the children.

Background Facts

3 The father and mother are Polish nationals. The father came to Ireland in 2007 and the mother came in 2008. They commenced living together. They did not marry. In April 2010, A was born in Ireland and in February 2013, M was born in Ireland. The parents and children lived together in Ireland until November 2015.

4 In November 2015, unhappy differences arose between the parents. The father decided to return to Poland. With the consent of the mother, he took both children with him to live in Poland in November 2015. There was a dispute in the High Court as to the period of time for which the mother gave consent to this, but that is no longer an issue in the appeal. The mother remained living and working in Ireland after the father and children left.

5 In Poland, the children lived initially with the father and his family and later, with the father and his new partner and her child in an apartment that he leased. A attended school there.

6 The mother visited Poland and the children on three or four occasions in 2016. It appears that during 2016, she sought the father's consent to the children returning with her to Ireland. He refused to give this. Relations between the parents appear to have further deteriorated in late 2016.

7 In September 2016, the father commenced custody proceedings in Poland. On 2 November 2016, the mother commenced proceedings in Poland under the Convention for the return of the children to Ireland.

8 In December 2016, the mother visited Poland and during that visit, with the father's consent, she took the children to stay with her at her mother's home, but did not return them.

9 The mother brought the children to Ireland on 5 January 2017 and informed the father on 6 January that they were in Ireland. Since the children's return to Ireland with the mother, they have lived with her and, for some or all of that period, with a partner of the mother. The children have been at school in Ireland.

10 The mother's application under the Convention in Poland was dismissed at first instance and on appeal. The father's custody proceedings in Poland, the Court was informed, are still extant but this Court has no information about what, if any, progress has been made in those proceedings during the course of this Convention application in the Irish courts. The father came back to work and live in Ireland during the Irish proceedings. However, he was not present at the hearing of the appeal in this Court and the Court was informed by his Counsel that he has returned again to Poland.

The Proceedings to Date

11 The proceedings were issued on 14 August 2017, and grounded, as is current practice, on an affidavit of a solicitor from Smithfield Law Centre, who received instructions from the Irish Central Authority to make the application on behalf of the father. The grounding affidavit discloses that the Law Centre received instructions from the Central Authority on 19 June 2017 by letter, which enclosed documents furnished to the Irish Central Authority by the Polish Central Authority, including a letter from the Ministry of Justice of the Republic of Poland, dated 29 May 2017. The documents included a completed application form by the father containing a request pursuant to The Hague Convention, dated 20 February 2017. I set out those dates as, unfortunately, there has been significant delay in the commencement of these proceedings and to a lesser extent, in its subsequent pursuit, the result of which was that, when the proceedings were heard by the High Court on 15 January 2018, the children had been back in Ireland for just in excess of one year since the date of the alleged wrongful removal in early January 2017. It is not relevant to this appeal to seek to identify what was the cause of the delay, save to observe that it does not appear to have been caused by the mother. However, the fact of the delay meant that the children had been back living in Ireland for approximately 17 months at the date of judgment in the Court of Appeal, and by the date of the hearing of this appeal, just over two years had passed since the date of the wrongful removal.

12 The summons was served on the mother on 18 August 2017. It was returnable for 6 September 2017, and it appears from the order made on that date, the mother appeared before the High Court. It also appears from an affidavit of the mother, sworn in connection with her leave application to this Court and filed on 8 November 2018, that she had, prior to 6 September 2017, made an application for legal aid in connection with these proceedings. She exhibited to this Court a letter from the Newbridge Law Centre dated 6 September 2017, informing her that their head office had refused her application under subss. 28(2)(b) and (d) of the Civil Legal Aid Act 1995 for two reasons; the first was that she did not have, as a matter of law, reasonable grounds for defending the proceedings and that there was then ‘no evidence to suggest that the Irish courts will not order the return of the child to Poland’; and secondly, that the proceedings were not ‘the most satisfactory means of achieving the outcome sought’ by her, as the Legal Aid Board considered the outcome sought by her was most satisfactorily achieved ‘by means of proceedings in the Polish courts’.

13 The absence of legal representation for the mother before the High Court and the Court of Appeal by a lawyer practising in Ireland and experienced in the complex issues arising in proceedings such as the present, has undoubtedly, contributed to the manner in which the proceedings were heard and determined in the High Court and the Court of Appeal. The mother has had the assistance of a ‘McKenzie friend’, Mr. Ligezowski, a Polish lawyer who is resident in Ireland and speaks English. Both the High Court and the Court of Appeal exceptionally permitted Mr. Ligezowski to address them on the mother's behalf. This was helpful, but such assistance was limited and did not equate to representation by a lawyer practising in Ireland. As appears from the later part of this judgment, the law relating to applications under...