M v M

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 26 May 2023
• Neutral Citation: [2023] IECA 126
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 2023/57

(Child Abduction: Habitual Residence, Views of the Child)

In the Matter of the Child Abduction and Enforcement of Custody Orders Act, 1991 and

In the Matter of the Hague Convention and

In the Matter of R. M., A Minor

M

Respondent

and

M

Appellant

[2023] IECA 126

Donnelly J.

Faherty J.

Ní Raifeartaigh J.

Record No: 2023/57

THE COURT OF APPEAL

UNAPPROVED

JUDGMENT of Ms. Justice Donnelly delivered the 26 ^th day of May, 2023

Introduction

1 . This is an appeal by the mother of a child, who for the purposes of these proceedings will be called Pawel, against the judgment [2023] IEHC 183 and accompanying order of the High Court that Pawel be returned to the jurisdiction of the courts of Poland. Two issues arose in the High Court and in this appeal; whether Pawel was habitually resident in Poland and whether return ought not to be ordered, in all the circumstances of the case, because of Pawel's stated views on returning to Poland.

2 . For the purposes of this judgment, I will refer to the father as “the father” or, where appropriate, “the applicant”. He is the respondent to the appeal. I will refer to the mother as “the mother” or, where appropriate, “the respondent”. The mother is the appellant.

Background

3 . Pawel is now over 14 and a half years old. He was born in Ireland. Prior to July 2021, he had lived most of his life in Ireland, apart from a period when he was about one year old. Both his mother and his father are nationals of Poland. There is a dispute between the parties as to when and how their relationship broke up, but nothing turns on that dispute. Both parties agree the break-up was difficult. It is sufficient to say that both the mother and the father continued to live in Ireland up to July 2021.

4 . Pawel's mother became involved with another man with whom she has a young child now aged about 7 years. Pawel lived with them and went to primary school in Ireland. Pawel's father became involved with another woman in or about 2015 and they have a young child born in 2021. Pawel enjoyed the company of his father in Ireland although his primary carer was his mother. Pawel is fluent in English and fluent in conversational Polish; he speaks Polish at home. His linguistic difficulties with being educated through the Polish language medium will be discussed later.

5 . It is undisputed that as of July 2021, Pawel was habitually resident in Ireland. The circumstances in which Pawel came to be in Poland in 2021 are disputed, however. Indeed, neither party's affidavits are perhaps as clear as they could have been on that issue. The grounding affidavit of the father's solicitor asserts that the child moved from Ireland to Poland with his father in July 2021. A declaration, dated 9 September 2021 and signed by both parents, as to the place of residence of the child, being the father's address in a city in Poland, is exhibited. Another declaration with respect to an application for home schooling in Poland was also exhibited. This also indicated that Pawel was registered with a named private primary school. The residential address on the declaration was that of his father. The declaration stated that Pawel would take annual classifications exams conducted by the school, in accordance with regulations at a time and place directed by the school. The applicant's solicitor's affidavit says it was agreed that home schooling was the best schooling option for Pawel for the first year to help him acclimatize in Poland. It is also averred that in June 2022 he passed the classification examination for Grade 7 at the private primary school. At no point, however, in the affidavit, or the exhibited statement of the father, is there any detailed explanation as to why or how the transfer of Pawel to Poland, and his transfer from the primary care of his mother to his father, came about. For example, there is nothing to say that this was because of a particular agreement arrived at by the parents in relation to how long this new primary care provision would last or what access periods would apply.

6 . In her replying affidavit, the mother avers that she does not accept that the father and Pawel moved and/or relocated to Poland in July 2021. She says that her mother (referred to hereafter as “the maternal grandmother”), who resided in Poland, was ill at this time. In circumstances where the maternal grandmother required care and support, the mother says that she “agreed for the Applicant to take the child to Poland in July” in advance of her traveling to Poland with her other son in August. Following her arrival in Poland, the children resided with her at the maternal grandmother's residence. She says that the father lived separate and apart from her, at his own address about 150 kilometres away. She said that it was in September 2021, when she went home to Ireland with her other child, that Pawel moved to live with his father. She says she intended to return to Poland and spend time with the maternal grandmother and Pawel.

7 . The mother avers that the maternal grandmother died unexpectedly in October 2021 and the mother and her other child returned to Poland for two weeks. Pawel joined her and his half-sibling at the late maternal grandmother's residence during this period. The mother said she was conscious of not causing further disruption for Pawel and his schooling, therefore, upon her return to Ireland, he remained in Poland from September 2021 to February 2022.

8 . The mother says however that between September 2021 and February 2022 during her daily and consistent contact with him, Pawel was expressing a wish to return to Ireland as he was missing her and his half-brother. He returned to Ireland in February 2022 accompanied by his aunt. In May 2022, the mother then returned with Pawel to Poland in circumstances where Pawel was attending the christening of the father's other child, and for the purpose of facilitating the completion by Pawel of his final Polish examinations. She goes on to say that on 3 August 2022 she travelled to Poland and then took Pawel to stay with her at her late mother's house. As deposed to by the mother, on 17 August 2022 Pawel returned to Ireland in the company of the mother and they have not returned to Poland since that date.

9 . At para. 11, the mother avers that the signing of the parental consent form confirming Pawel's residence at the father's address was not then or now an acceptance that the named city in Poland (the residence of the father) was Pawel's permanent residence. She says that at the time she signed the form it was expected that she would be spending the majority of her time in Poland with the maternal grandmother. However, the unexpected death of the maternal grandmother (in October 2021) frustrated those plans save that the mother did not want to disrupt the schooling plan for Pawel that had already been arranged. The mother also avers that at no stage did Pawel enter the mainstream secondary school system in Poland. She says that she was unaware (in October 2021) that Pawel could have continued his Polish home schooling in Ireland. She said she was caused by the applicant to believe that home schooling could only be undertaken in Poland and that Pawel had to be declared as resident in Poland for this purpose.

10 . In his replying affidavit, the father takes issue with the mother's account of Pawel's relocation to Poland. He says that in the Autumn of 2020 it was agreed between him and the mother that himself, the mother and Pawel would move back to Poland (albeit in two separate family units). He says that this was intended to be a permanent move. It was agreed that Pawel would complete his education in Poland. He says that Pawel knew of this in August 2020. He claims that this was agreed because both parents wanted to move back to Poland and because Pawel had had unpleasant experiences in school (the specific experience referred to is denied by the mother). The father says that it was agreed before moving to Poland that Pawel would live with him and go to school in his area. Furthermore, it had been agreed that Pawel would be home-schooled at first “in order to adjust to life in Poland”.

11 . He says it was also agreed that the mother would transfer the Irish child benefit to him and pay the agreed maintenance of €170 to him for as long as the mother remained in Ireland. It was, the father says, agreed that the mother could take Pawel to her home while she was in Poland. The plan was that the mother would move permanently to Poland after the father's relocation to Poland. He avers that he moved to Poland with Pawel on 14 July 2021: the plan was that the mother would move to Poland in August 2021. He states that in August 2021, the mother travelled to Poland to care for the maternal grandmother who was unwell. He agrees that Pawel spent two weeks with her, and thereafter returned to the father's care at the end of August 2021 following which he commenced school in September 2021.

12 . The father describes Pawel's travel to Ireland in February 2022 as solely for the purpose of visiting his family in Ireland. He says he consented to Pawel being away for a period of three weeks only. Towards the end of February, he had contacted the mother asking for a date for Pawel's return and was advised that it would be March. However, the mother did not return Pawel to Poland until 25/26 April 2022. Consequently, Pawel's education was disrupted.

13 . The father denies that the purpose of Pawel's return to Poland in April 2022 was to attend his half-sister's Christening and complete his examinations. While he did both these things, the primary reason for his return was that he was at that point habitually resident in Poland.

14 . According to the father, the mother was allocated social housing in Ireland after having been on a waiting list for years. He suggests that this might be why she changed...