P (I) v P (T)

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 07 February 2012
• Neutral Citation: [2012] IEHC 31
• Docket Number: [2011 No. 22 HLC]
• Date: 07 February 2012

P (I) v P (T)

FAMILY LAW

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT 1991AND IN THE MATTER OF THE HAGUE CONVENTION AND IN THE MATTER OF COUNCIL REGULATION 2201/2003 AND IN THE MATTER OF A P, A MINOR

BETWEEN

I P

APPLICANT

AND

T P

RESPONDENT

[2012] IEHC 31

[No. 22 HLC/2011]

THE HIGH COURT

FAMILY LAW

Child abduction

Hague Convention - Wrongful removal - Return of child to place of habitual residence - Obligation to return child - Exceptions - Child's objections - Whether age and maturity of child such that appropriate to take account of objections - Intolerable situation - Discretion - Factors in exercising discretion - Convention policy considerations - Whether grave risk of intolerable situation - Protective measures - CA v CA (otherwise CMcC) [2009] IEHC 460, [2010] 2 IR 162 applied; Re M (Abduction: Child's Objections) [2007] EWCA Civ 260, [2007] 2 FLR 72 followed; In re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619 and In re E (Children) [2011] UKSC 27, [2012] 1 AC 144 approved; AU v TNU [2011] IESC 39, [2011] 3 IR 683 applied; Neulinger and Shuruk v Switzerland (App No 41615/07) (2012) 54 EHRR 31 considered - Child Abduction and Enforcement of Custody Orders Act 1991 (No 6) - Council Regulation (EC) No. 2201/2003, article 11(4) and (6) to (8) - European Convention on Human Rights 1950, article 8 - Hague Convention on the Civil Aspects of International Child Abduction 1980, articles 1, 3, 4, 13 and 19 - Relief refused (2011/22HLC - Finlay Geoghegan J - 7/2/2012) [2012] IEHC 31

P(I) v P(T)

Facts: The mother, father and child in the proceedings were all Polish nationals. The mother commenced proceedings pursuant to the Hague Convention on Civil Aspects of International Child Abduction 1980, as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act 1991 and Council Regulation (EU) 2201/2003, through the Central Authority of Poland and Ireland seeking the return of the child, Anna, to Poland. Serious allegations were made against the mother. Two defences were raised by her father- namely that Anna objected to her return and was of such an age and degree of maturity that her views had to be taken into account. Also, it was asserted that there was a grave risk that her return to Poland would result in an intolerable situation. The Court considered the best interests of the child and the appropriate exercise of the discretion of the Court.

Held by Finlay Geoghegan J. that there would be an order refusing the application. The Polish courts had jurisdiction to examine the question of custody. It was not reasonable to expect the father to leave his employment in Ireland. It would be contrary to the best interests of Anna to make an order for her return to Poland.

Reporter: E.F.

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991

EEC REG 2201/2003

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 4

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 1

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 3

BEAUMONT & MCELEAVY HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION 1999

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13

A (C) v A (C)(ORSE MCC(C)) 2010 2 IR 162

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13(B)

E (CHILDREN) ABDUCTION: CUSTODY APPEAL, IN RE 2011 2 WLR 1326

NEULINGER & SHURUK v SWITZERLAND 2011 1 FLR 122

D, IN RE 2007 1 AC 619

EEC REG 2201/2003 ART 11(4)

A (U) v N (U T) UNREP SUPREME 13.10.2011 2012 1 ILRM 149 2011 IESC 39

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 19

EEC REG 2201/2003 ART 11

R (S) v R (S) UNREP SHEEHAN 21.5.2008 2008/54/11281 2008 IEHC 162

N (M) v N (R) UNREP SHEEHAN 1.5.2009 2009/41/10334 2009 IEHC 213

EEC REG 2201/2003 ART 11(6)

1 1. This is an application pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980, as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act, 1991, and Council Regulation (EU) 2201/2003 for the return of the child named in the title to the jurisdiction of the courts of Poland. The child, to whom I will refer in this judgment as Anna (not her real name) was born in August 1996. In August 2012, the Convention will no longer apply to her (Article 4).

2 2. The applicant is the mother of Anna and the respondent is the father of Anna. The applicant and respondent married in March 1996. Anna is their only child. Unfortunately, their relationship subsequently broke down and they divorced in April 2009. Anna has one half-sister to whom I will refer as Emma in this judgment (not her real name) who is the daughter of the father from a prior marriage. She is not the daughter of the applicant. Since the father's separation and divorce from his firstwife, Emma had been in his custody. She was eight years old when the mother and father first met and lived with them after they married until she was a teenager.

3 3. The mother, the father, Anna and Emma are all Polish nationals. They lived in Southern Poland. In 2006, Emma came to Ireland. She is now an adult, married with three young children and continues to live with her husband in Ireland.

4 4. The father, after separation from the mother, came to Ireland in 2007 and lives and works in a town in the west of Ireland.

5 5. The decree of divorce of 7 ^th April, 2009, in its English translation, "entrusts the performance of parental power over the parties' minor daughter ..." to the mother and grants to the father "the right to co-decide about important matters connected with the daughter, particularly the choice of school and profession".

6 6. Anna continued to live with her mother after the mother and father separated. Her maternal grandmother also appears to have played a role in her life.

7 7. The father gave Anna a computer, and since approximately the summer of 2009, she has had regular Skype contact with her father and Emma in Ireland.

8 8. In August 2010, the father paid for airplane tickets for the mother and Anna to come to Ireland for three weeks, when they stayed with Emma and her family. Anna had been invited to become the godmother of one of Emma's daughters.

9 9. In July 2011, the father went to Poland. On 12 ^th July, 2011, without informing the mother or obtaining her permission, Anna left Poland with her father and travelled by car with him to Ireland. Prior to leaving Poland, she went with her father to the local police where he made a complaint in relation to alleged treatment of her by her mother and her maternal grandmother. In Ireland, on 14 ^th July, 2011, Anna went to the Polish Embassy in Dublin and had a short handwritten statement signed by her,witnessed by an official in the Polish Embassy. The translation of the document states:

"I [ ] state that I came to Ireland voluntarily with my dad [ ] and I also inform that both my mum, namely [ ] and granny [ ] have abusing me physically and mentally from the time my dad left for Ireland in 2007."

10 10. Since July 2011, Anna has lived with her father in a two-bedroomed house in a town in the west of Ireland. She goes to the local secondary school where she has one Polish friend and is also learning English. She regularly visits Emma and her family at weekends.

11 11. Regretfully, she has had very little contact with her mother since she came to Ireland. She has had no contact with her now for in excess of four months.

12 12. On 29 ^th July, 2011, the mother commenced steps through the Central Authority of Poland and of Ireland to seek the return of Anna to Poland. Proceedings were issued on 19 ^th October, 2011. The summons was initially grounded on an affidavit of the solicitor for the applicant in accordance with current practice.

13 13. The father, in the first replying affidavit, explains why he took Anna to Ireland in July 2011. In doing so, he makes a number of serious allegations against the mother. In part they are based on what he states he has been told by his daughter, Emma, of difficulties allegedly encountered by Emma with her stepmother whilst living in the house in Poland. He alleges that the mother behaved differently in his presence and that he was unaware of how bad things allegedly were when he came to Ireland in 2007.

14 14. At para. 15 of the affidavit, he explains that it was when he visited Poland in July 2011 that Anna revealed to him that, "she was dreadfully unhappy and now found her predicament unbearable". He then describes a number of allegationsallegedly made by Anna against her mother and maternal grandmother. He states at para. 23 of the affidavit:

"I believe [Anna] as an individual had a right to participate in the dilemma surrounding her life and in the formulation of her own destiny in a manner commensurate with her age, development and understanding. I also wanted her to be in a safe, loving and caring environment. In this regard, I felt it was my duty to protect my daughter from such a breach of her personal integrity. I agreed to rescue her and bring her back to Ireland with me, as this was the measure that had a real prospect of mitigating the harm. We travelled on 14 ^th July 2011 and also visited the Polish Embassy on 14 ^th. I say that there was no inducement to [Anna] to come to Ireland and that it was an expression of [Anna's] free will to ask to come to Ireland."

An affidavit from Emma was also filed making allegations against the mother.

15 15. The solicitors for the applicant in this jurisdiction have had considerable difficulties in obtaining instructions from the mother for the purpose of these proceedings. The mother does not speak English....