R.W. v T.W.

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 13 March 2024
• Neutral Citation: [2024] IEHC 141

In the Matter of Article 11(7) of Council Regulation 2201/2003/EC

And in the Matter of the Guardianship of Infants Act 1964

And in the Matter of Q (A Minor) (Child Abduction: Retained Jurisdiction Following Non-Return Order, Best Interests of Child)

Between:

R.W.

Applicant

and

T.W.

Respondent

[2024] IEHC 141

THE HIGH COURT

FAMILY LAW

Judgment of Ms. Justice Mary Rose Gearty delivered on the 13 ^th of March, 2024

1. Introduction

1.1 The child, whom I will refer to as Q, was brought to Poland by his mother in 2019 where the relevant Court held that he had been wrongfully removed but the defence of grave risk was established. His father asks this Court to overrule the non-return orders made in Poland, bringing Q back to Ireland.

1.2 The best interests of the child are my primary concern. Given his nationality, language, upbringing, special characteristics and family life, Q should remain in Poland and the Court will not override the order of non-return.

1.3 Final orders in future cases under Article 11 will be made within 6 months of first appearing in the list, unless there are exceptional circumstances.

2. Change of Habitual Residence during Proceedings

2.1 There was a preliminary application by the Respondent that the Court should refuse to entertain this case because the child is now habitually resident in Poland. The basis for this argument was that the Applicant has applied to, and responded to, the courts in Poland and it was said that this suggests that he accepts the new habitual residence of Q. This application was refused. Articles 10 and 11(6)-(7) of Regulation 2201/2003/EC (“the Regulation”) provide that this Court, in the country which was Q's habitual residence immediately before his removal, retains this special jurisdiction.

2.2 Article 10 of the Regulation provides that this Court retains jurisdiction until Q acquires habitual residence in another Member State and either the parent has acquiesced in return or: “ a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.” This answers the submission. The provision requires both evidence of acquiescence and a change of habitual residence, unless judgment has been issued by this Court confirming the non-return order.

2.3 The argument that the Applicant acquiesced centred on the fact that he applied to, and replied to, the Polish courts in the course of proceedings there. This Applicant made his submissions in early course when the case was listed by the Central Authority. He has sought Q's return since that time. The Polish applications by the Respondent, who sought sole custody, might have extinguished his custody rights, after the original non-return order. There is no evidence of acquiescence in the accepted meaning of the word, that is, there is no evidence of his having subjectively accepted the situation nor did he act so as to lead the Respondent to believe that he would not object to the child remaining in Poland.

2.4 This preliminary objection was notified to the Applicant days before the hearing in February, 2024. This was very late to raise the issue, and the fact that I have addressed it should not serve as a precedent; the point was not raised in written submissions, lodged the week before the hearing.

3. The Review of a Non-return Order: Article 11

3.1 The mechanism provided in Article 11 has no equivalent in the Hague Convention and allows the courts in the Member State of origin to make a final decision on custody issues. This means that after a non-return order in Poland, the matter remains before the Irish courts if either party promptly applies for this review under the Regulation. The ultimate aim is to ensure certainty for the child, either by transferring jurisdiction to Poland or by making a final, enforceable order that the child be returned to Ireland.

3.2 The Court makes the decision on custody, based on the best interests of the child. This is not a decision on whether he should now be returned under the summary procedure set out in the Regulation; it is a decision as to which is the better environment for the child. The Court must decide, in accordance with the principles set out in s.31(2) of the Guardianship of Infants Act 1964, as amended, (the “1964 Act”), if it is in the child's best interests to stay in Poland or whether he should be moved to Ireland to ensure that he has a meaningful relationship with the Applicant. In assessing Q's interests, the significant factors which must be taken into account are set out in the 1964 Act and, in this case, include the fact that Q has been in Poland for most of his life, the factual effects of the wrongful removal on him and his relationship with his father, and the ability of the Applicant father to care for him.

3.3 The Article 11 procedure is explored in Z. v. Z. [2021] IEHC 20, where Simons J. set out the rationale behind the provision and reviewed the relevant law. As he makes clear, such an application should be treated as urgent. In that case, there were more significant delays both in the initial transmission of documents to the Court from the Central Authority and in setting hearing dates, which had to be vacated due to the COVID-19 global pandemic. Nonetheless, this case is now being decided years after the child in question returned to Poland and this will, inevitably, inform the decision on his welfare. Bearing in mind the comments from Simons J. in Z v Z, and similar comments from Ní Raifeartaigh J. in D.M.M. v. O.P.M. [2019] IEHC 238, future cases must be assigned hearing dates within months of first being listed, not years, as has happened here.

4. Procedural History and Article 11 Delays

4.1 These proceedings have had a long history in the Court's list. The case first appeared in the list in 2022. Thereafter, there were delays on the Respondent's side followed by difficulties in obtaining a report on the child. The expert assessor appointed in 2023 travelled to Poland that October to prepare a report for the Court. In the meantime, access arrangements were directed but not always adhered to. The case was listed for hearing at the direction of the Court due to the length of time it had remained in the list.

4.2 Delay appears to be a feature of these cases: in a list with otherwise strict time limits regarding applications for the summary return of abducted children, the final review of a non-return order appears less urgent by comparison. The respondent often has little motivation to urge the Court to a hearing as that parent is usually in a strong position, given that a child's best interests include such factors as social and family environment, over which that parent has almost complete control. The applicant in such cases faces the uphill battle of arguing that, despite what is inevitably a long period in a child's life with the other parent and a court order in another Member State directing that he remain there, an Irish court should be persuaded to override that custody order. If an applicant succeeds, the inevitable effect is to uproot a child again, but considerably later than would be the case after a summary application for return.

4.3 While a return order may be made, the reality of Article 11 cases is that this is rarely done and, that being so, the applicant parent often allows the case to remain in the list as this allows the Irish Court to direct interim access, perhaps on better terms than anticipated in the new habitual residence. Even if access is not as generous as, or is equivalent to, that being provided or proposed in the new habitual residence, the respondent is perceived as having more motivation to abide by Irish court directions as long as there remains a risk of the non-return order being overruled by this Court.

4.4 The reality on the ground is that negotiations are always ongoing in these cases and, on occasion, this Court has noted improved dynamics in the family, as trust is rebuilt. However, that is not the function of the mechanism and allowing time for negotiation, or even mediation, cannot become a default position in this list. This Court will direct hearing dates in...