A.P.P. v S.A.P.
| Jurisdiction | Ireland |
| Judge | Ms Justice Ní Raifeartaigh |
| Judgment Date | 15 February 2017 |
| Neutral Citation | [2017] IEHC 91 |
| Court | High Court |
| Docket Number | RECORD NO: 2016/33 HLC |
| Date | 15 February 2017 |
[2017] IEHC 91
THE HIGH COURT
Ní Raifeartaigh
RECORD NO: 2016/33 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
AND IN THE MATTER OF COUNCIL REGULATION 2201/2003/EC
AND IN THE MATTER OF N.P. A CHILD
This is a case in which the applicant, the father of a 7-year old girl, seeks the return of the child to Poland pursuant to the provisions of the Convention on the Civil Aspects of International Child Abduction, 1980 (the ‘Hague Convention’), the provisions of the Child Abduction and Enforcement of Custody Orders Act, 1991, and the Matrimonial and Parental Judgments: Jurisdiction, Recognition and Enforcement, Regulation (EC) No 2201/2003 (the ‘Brussels II bis Regulation’). As in all such cases, the issues before the Court are not the wider issues of where, and with whom, and in what circumstances, the child should live, but a much narrower set of issues; whether the removal of the child to Ireland was ‘wrongful’ within the meaning of the Convention, and whether or not, having regard to the matters set out in Article 13 of the Convention, in particular, the child's return to Poland should be ordered by the Court. This Court is not directly engaged in making a decision concerning what is the best living arrangement for the child, nor in judging the mother and father's parental skills, or matters of that kind. The Court is concerned with a much narrower range of legal issues arising under the Hague Convention, which is primarily directed at the widespread international problem of children being taken from their home countries by one parent without the consent of the other.
The applicant (the father) and the respondent (the mother) were married on the 13 th April, 2009. A daughter, N, was born on the 9 th July, 2009. They divorced on the 5 th August, 2013, and an order of the District Court in Jelenia Gora, Poland on that date provided, inter alia, as follows: “ [this order] entrusts to both parents the exercise of parental authority over the common minor child of the parties [N] determining the place of stay for the minor in the place of residence of [the mother] according to the agreement of the spouses in writing of 12 April 2013”. The agreement between the parents dated the 12 th April, 2013, provided, inter alia, that “ in order to facilitate the exercise of parental authority, the parties hereby agree to the residence of the minor [N] be each time the residence of her mother [S.P.], except that the father [A.P.] will be entitled to co-decision in matters relating to raising the child and exercising parental authority of minor daughter [N]”. The agreement also provided that the father had the right to personal contact with the child not less frequently than once a week, as well as part of the holidays, not less than one week. It provided that both parents were entitled to maintain contact with the kindergarten and the school and that the parties committed to informing each other about the circumstances related to the upbringing and education of their daughter and taking decisions ‘in common’ about matters such as extra-curricular activities, school choice and so on.
In December, 2013, the mother sought agreement from the father to take the child to Spain to live with her and her new partner. She filed a court application to dispense with his consent. The father refused his consent and the court application was dismissed. The mother went to Spain without her child and worked and lived there for five months, until May, 2014. During that time, the child lived with her father.
At the beginning of July, 2016, the mother asked the father for his consent to go to Ireland with the child. He said he wanted to consider this and later refused his consent. On the 28 th July, 2016, the mother made a court application seeking the court's consent to leaving the jurisdiction with the child. It appears that the father was not made aware of these proceedings until after the mother had left Poland. She decided to leave the country before the proceedings were heard by the court, and did so on the 21 st August, 2016. On the same day, the father received a text message from the mother saying: “ I had to leave. [N] is with me. Everything is well”. Apparently the mother had notified the child's school in advance (on the 9 th May, 2016) that the child would be continuing her education in Ireland, but this was not known to the father until September, 2016.
On the 5 th September, 2016, the father made a written request to the Central Authority of Poland for the return of the child to Poland. On the 22 nd September, 2016, the application was transmitted to the Irish Central Authority. He also put in a reply to the proceedings instigated by the mother in Poland. On the 6 th October, 2016, the District Court in Jelenia Gora suspended the proceedings pending the outcome of this Hague Convention application.
On the 26 th October, 2016, the present proceedings were commenced by way of special summons. The summons was served on the mother on the 28 th October, 2016.
On the 9 th November, 2016, the Court made an order for the assessment of the child by a psychologist pursuant to Article 11(2) of the Brussels II bis Regulation. On the 30 th November, 2016, this assessment was carried out. The child was aged 7 years and 4 months at the time. She was, and is, in first class at school. Further details will be given below of the contents of the psychologist's report.
An affidavit was sworn by the mother and translated for the court. In her affidavit, the mother states that she decided to leave Poland before the hearing of her court case because she had received no reply from the court within seven days, and her daughter was due to begin school in Ireland at the end of August. She states that her motivation for lodging the application with the Polish Courts was that, following discussions with the father about her intention to leave Poland, he refused his consent. She refers to her financial situation as follows:
“Back in Poland I was earning PLN 1,300 (approx. 325 Euro) monthly and out of that sum I had to pay PLN 1,200 rent and the pre-school cost PLN 200 (approx. 50 Euro) a month. [N]'s father was paying me PLN 400 (approx. 80 Euro) monthly maintenance and did not partake in any additional expenses.”
She also describes the father's interaction with his child in the following terms:
“[The father] was entitled to take [N] for the weekend every two weeks and he also had her for half of the duration of the summer holidays and for a week during the winter mid-term break. I never stood in the way of his access to [N]. Unfortunately, he did not live up to his end of the bargain: he would take our daughter, bring her to his parents’ and leave her there while he himself went back to his own place. At the moment, [N] talks to her father once a week over the telephone or Skype.”
She adds -
“I have no place of my own, no job nor is there a place in school for [N] back in Poland. [N] does not want to go back either because, as she keeps telling me, she is very happy here. Her family and friends are here. She tells me every day how much she loves her school, too.”
She concludes her affidavit by saying that “I left Poland to secure a better life for my daughter and myself and now, thanks to my job in [a named shop], I can afford a decent, comfortable lifestyle for both of us, much better than I would ever be able to provide in Poland.”
A replying affidavit was sworn by the father and translated for the court. He refers to his custody rights over [N] and states that he and the mother were regularly planning further and better access than that already agreed. He states that
“when [N] was still in kindergarten she would stay with me whenever she was sick. During the months before [N]'s abduction she was usually spending every second weekend, including nights, in my home; sometimes she would spend three weekends a month with me”
and that “[N] had wide access during the summer holidays. In the summer of 2016 she spent four weeks with me, living with me between July and August.” He also gives evidence about N's relationship with his parents, N's grandparents, stating that “[N] was also often visiting my parents during weekends and sometimes she would sleep in my home during the week.” He goes on to say,
“[N] has excellent relations with her grandparents (my parents) and she would regularly spend time with my mother during our visiting times. When she was with my mother I was rarely absent for more than a few hours. This time it is important for [N]'s grandmother that [N] has healthy and positive relations with her mother.”
He goes on to discuss his financial contributions to the child's upbringing,
“After the divorce with [the mother] I paid her monthly maintenance in the amount of PLN 150 (approx. EUR 35). [The mother] and I incurred some debts during our marriage and I was making payments on behalf of both of us in the amount of PLN 292 (from January 2012 to January 2017). Approximately two years ago my monthly payments have increased to PLN 400 (approx. Eur. 90). They were paid by bank transfer on the 14 th day of each month. [The mother] never turned to me seeking the increase of this monthly maintenance amount nor did she file any such motions before the court. Despite the fact that it was the entirety of my cash payments to [the mother] I would regularly buy clothes and toys for [N] during the time spent with her. I disagree with the statement that [the mother's] financial situation poses any threat to [N]'s wellbeing; I will do everything in my power to ensure her wellbeing.”
He then addresses the...
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