MN v an

 
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[2016] IEHC 739

THE HIGH COURT

O'Hanlon J.

Record No: [2016/30HLC]

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

AND

IN THE MATTER OF COUNCIL REGULATION 2201/2003

AND

IN THE MATTER OF M.N. (A MINOR)

BETWEEN:
M.N.
APPLICANT
AND
A.N.
RESPONDENT

Family – The Child Abduction and Enforcement of Custody Orders Act, 1991 – The Hague Convention on the Civil Aspects of International Child Abduction (‘Hague Convention’) – Council Regulation 2201/2003 – Custody rights – Wrongful removal – Place of habitual residence

Facts: The applicant/father sought an order for the return of the named child to the jurisdiction of Poland. The applicant contended that he had brought the respondent/mother along with the said child on a two-week holiday in Ireland and the respondent failed to return the child to Poland. The respondent did not object to the fact that the applicant had custody rights over that child. The respondent alleged that the applicant had made her move to Ireland in search for better employment and thus consented to the removal of the child. The respondent also raised contentions concerning violent behaviour of the applicant, which was accepted by the applicant.

Ms. Justice Bronagh O'Hanlon granted an order for the return of the child. The Court noted that it had mandatory obligation to return the child to the place where the child was habitually resident under art. 12 of the Hague Convention except in cases where it was established that the life of the child would be at risk on account of great harm as provided under art. 13 of the Hague Convention. The Court found that since the proceedings concerning child care and custody were already ongoing in the courts in Poland, including the action taken on the applicant for showing violent behaviour towards the respondent, it was appropriate that all other issues, too, would be dealt in Poland. The Court held that as per Council reg. (EC) 2201/2003, it was the courts in Poland who had the jurisdiction to deal with any dispute concerning child care as the child was habitually resident in that place. The Court noted down the views of the child who did not object to his return to Poland and stated that he was happy in both in Ireland and Poland.

JUDGMENT of Ms. Justice Bronagh O'Hanlon delivered on the 20th day of December, 2016
1

This case concerns an application for the return of the child, M. to the jurisdiction of the Republic of Poland pursuant to Article 12 of the Hague Convention on the Civil Aspects of Child Abduction 1980. The application is set out in the special summons issued 19th October, 2016. The Republic of Poland is subject to both the Hague Convention and Council Regulation 2201/2003. This case was heard on 20th December, 2016. The respondent chose not to be legally represented, although she was deemed eligible for legal aid upon payment of a contribution of €500.

2

The applicant father and respondent mother were married to each other on 24th January, 2009. The child was born in the Republic of Poland. The respondent has two other children who are not the children of the applicant and they are not subject to any Hague Convention proceedings.

3

On 16th November, 2016, this Court ordered that Mr. Michael Mullally, Clinical Psychologist, do interview and assess the child, the subject matter of these proceedings pursuant to Article 11(2) of Council Regulation 2201/2003 in order to give an opportunity for the voice of this child to be heard. The child attended at the office of Mr. Mullally on 22nd November, 2016 along with an interpreter and Mr. Mullally provided a report to the Court dated 30th November, 2016.

4

It was submitted on behalf of the applicant that the Hague Convention on the Civil Aspects of International Child Abduction is intended to prevent ‘the use of force to establish artificial jurisdictional links on an international level, with a view to obtaining custody of a child’ as cited from the Perez- Vera Explanatory Report. It is the applicant's position that the child was wrongfully retained beyond the two week holiday to Ireland that was consented to by the applicant. The circumstances outlined by the applicant are that he brought the respondent and the children to the airport on 17th June, 2016 for a two week holiday in Ireland and the respondent failed to return to Poland after that two week period.

5

Article 3 of the Hague Convention sets out the definition of wrongful retention as follows:-

‘The removal or the retention of a child is to be considered wrongful where:

(a) it is in breach of rights of custody attributed to a person, an institution or any body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of the...

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