M.T. v R.L.

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Nuala Jackson
• Judgment Date: 10 March 2025
• Neutral Citation: [2025] IEHC 280
• Docket Number: Record No. 2024 8 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, 1980

and

In the Matter of Council Regulation (EU) 2019/1111

and

In the N. T., a Minor

Between:

M. T.

Applicant

and

R. L.

Respondent

[2025] IEHC 280

Record No. 2024 8 HLC

THE HIGH COURT

FAMILY LAW

Wrongful removal – Grave risk – Objections of child – Applicant seeking return of child – Whether the defence of grave risk had been made out

Facts: The applicant father applied to the High Court for the return to Poland of a seven year old child in circumstances in which the applicant alleged that she was wrongfully removed to and/or retained in Ireland by the respondent mother at some point during 2023. It was accepted that the child was habitually resident in Poland prior to removal. On the evidence before Jackson J, she concluded that the applicant did have rights of custody at the time of the removal. She found that the issue of settlement did not arise as the date of removal/retention was stated by the respondent to be a date in July 2023 and the proceedings issued within the 12 month period. Having regard to the efforts made by the applicant through litigation and otherwise to see the child and to maintain contact with her, Jackson J was satisfied that the applicant at all material times attempted to maintain a relationship with the child and in so doing was exercising rights of custody. Jackson J found that there was no evidence that the applicant consented to the removal/retention or that he acquiesced in that regard after it had taken place.

Held by Jackson J that two defences in Article 13 of the Hague Convention on the Civil Aspect of International Child Abduction 1980 had been substantially invoked by the respondent being (a) grave risk and (b) the objections of the child. Notwithstanding the fact that the facts supported a conclusion of grave risk, having considered the domestic protections afforded and their effectiveness (the facts in relation to the latter not being significantly in dispute), Jackson J held that the defence of grave risk had not been made out. She accepted that the child was expressing objections to seeing her father; she was of an age and maturity at which careful regard would usually have to be afforded to such objections. However, Jackson J had considerable reservations in relation to the independence of the objections expressed and, in such circumstances, she exercised her discretion in favour of return. She noted that the Polish courts had ordered a psychological assessment in the context of the extant relocation application before that court; this would enable a far more detailed and far reaching assessment to be carried out as regards the welfare of the child, encompassing also the voice of the child, than was possible before Jackson J. She noted that if either of the above defences were determined to be engaged, there was still a discretion vested in her as to whether or not the child should be returned; that discretion was confirmed in the judgment of Denham J in Minister for Justice (EM) v JM [2003] 3 IR 178. Jackson J exercised that discretion, on the facts of the case, in favour of return.

Jackson J directed that the child be returned to the place of her habitual residence but that this would require appropriate undertakings and furthermore that the timing of such return must also be considered in the context of the child’s welfare and, in particular, in the context of the delays which had resulted in her having spent a considerable period of time living in Ireland. Jackson J held that she would hear from the parties in relation to appropriate undertakings and orders in that regard.

Application granted.

JUDGMENT of Ms. Justice Nuala Jackson delivered on the 10 ^th March 2025 .

INTRODUCTION

1 These proceedings are for the return to Poland of a seven year old child in circumstances in which the Applicant alleges that she was wrongfully removed to and/or retained in Ireland by the Respondent at some point during 2023. One of the significant concerns arising in this case relates to delay, including post-proceedings delay, but I will reference this further below. In this context, I have appended a chronology to this judgment in the hope that examination of it will identify approaches which might be made to address delays such as have occurred in the present case.

2 These proceedings were instituted by Special Summons issued on the 2 ^nd May 2024. There are many uncontested facts as between the parties. I will detail these at the outset.

UNCONTESTED FACTS

• (i) The child was born in Poland in 2017.

• (ii) The Applicant is the father of the child.

• (iii) The Respondent is the mother of the child.

• (iv) The parents of the child have never been married.

• (v) The parents were in a relationship together between 2014 and 2022, the Respondent contending that there were separations during this time but it is common case that the eventual separation was in or about March 2022.

• (vi) It is accepted by the Respondent in written submissions filed that the child was habitually resident in Poland prior to coming to live in Ireland.

• (vii) There were numerous applications (criminal and civil) brought by and concerning the parties on different occasions before the District Court in [REDACTED], Poland including:

  • (a) The Applicant convicted of an offence of domestic violence against the Respondent on the 7 ^th November 2018. The judgment of the court references acts of physical violence against the Respondent and references that he did “by acting unintentionally, he caused an impairment of the functioning of the body organs of [NT] in such a way that during the blow to [RL], who was holding her 9-month old daughter, [NT], he hit her, as a result of which she unintentionally sustained bodily harm in the form of a bruising behind her right ear, which caused an impairment of the proper functioning of her body organs for a period of less than seven days.” (redacted)

  • (b) Order for maintenance 26 ^th July 2018 (default alleged);

  • (c) Order of the 22 ^nd October 2018 providing for the child to reside with the Respondent with access to the Applicant. The Applicant (at paragraph 10 of her first replying Affidavit) sought to advance the suggestion that such Order entitled her to reside anywhere with the child. This patently cannot be so as first, the access provided to the Applicant was only achievable if the Respondent resided in Poland and, secondly, if she truly so believed, there would have been no need for her to bring a relocation application in September 2023. In addition, at paragraph 35 of the Respondent's first replying Affidavit herein, she avers:

    “I accept that the Applicant access rights are incompatible with my residing in Ireland and that is why they need to be changed”;

  • (d) Agreed terms of access were entered into on or about the 30 ^th June 2022 (unsupervised weekly daytime and weekend overnight together with holiday access) subject to complete sobriety on the part of the Applicant. In the course of the within proceedings, the Hague Liaison mechanism was used in order to endeavour to ascertain the position concerning extant applications before the Polish Courts. In this context, a reply indicated that a case had been initiated on 2.06.2022 ex officio for the issuance of orders with a decision having been made on 2.06.2022. obliging participant RL to continue psychological therapy, and participant MT to abstain from alcohol abuse. I was further advised that this case is closed. In the context of the dates proffered, it would appear that the proceedings of early June 2022 were superseded by the agreement of the parties of the 30 ^th June 2022.

  • (e) A Decision of the Assistant Public Prosecutor of the 17 ^th February 2023 prohibiting the Applicant from contacting the Respondent directly or indirectly, from approaching her close than 30 metres and twice weekly visits to a police station. In addition, the Applicant was prohibited from leaving Poland. This Decision would appear to have been made in the context of criminal charges brought against the Applicant concerning alleged threats and violence against the Respondent in or about February 2023;

  • (f) There was an appeal from (e) above to the District Court Criminal Division amending the Decision made at that time so that it did “not apply to contacts related to matters regarding the care of the daughter of the suspect and the injured party, N., however the remaining scope of the contested decision will be maintained” (14 ^th April 2023);

  • (g) Applications (referenced below) would appear to have come before the Court on a date in June 2023 and some evidence was heard but no Orders were made and the matter was adjourned to 27 ^th October 2023;

  • (h) An Order of the 27 ^th October 2023 provided for supervised daytime contact between N and the Applicant. The Respondent avers that the Polish court did not order her return on this date. However, neither did it make an Order permitting the child to relocate. It is difficult to understand how the access order made on that date could have been implemented without the child being in Poland. The Applicant avers that the Respondent on this occasion acknowledged the illegality of her actions in bringing the child to Ireland to the Court and apologised for this. This is a matter in dispute;

  • (i) There was a criminal conviction of the Applicant in respect of threatening behaviour towards the Respondent involving a threat relating to “deprivation of life and bodily harm” together with a co-accused. The charges relate to the same criminal charges in the context of which the Decision and Order at (e) and (f) above were made. The date of this conviction was the 31 ^st October 2023. The penalty imposed involved a fine and a restriction on approaching the Respondent and...