T.W. v A.W

JurisdictionIreland
JudgeMs. Justice Mary Rose Gearty
Judgment Date12 July 2021
Neutral Citation[2021] IEHC 518
Docket Number[2021 No.11 HLC]
CourtHigh Court

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 (Ec) 2201/2003 and in the Matter of K, a Minor

Between:
T.W.
Applicant
and
A.W
Respondent

[2021] IEHC 518

[2021 No.11 HLC]

THE HIGH COURT

FAMILY LAW

Wrongful removal – Return – Grave risk – Applicant seeking the return of his son – Whether the child was at grave risk

Facts: The applicant father applied to the High Court seeking the return of his son. The child was born in 2014, moved to Ireland in 2015 with the respondent mother, the applicant and his half-sister, and remained with the respondent when the parties’ relationship broke down. In 2017, before taking the child to Poland, the applicant signed an agreement in which he stated that he would not prevent the child returning to Ireland to live with his mother. Despite that written undertaking, the child was made the subject of an ex parte custody order obtained by the applicant in Poland, in late 2017. The respondent discovered that an interim custody order had been made in December, 2017. Since 2017 the child had lived with his father and a court in Poland had decided that he was habitually resident there. The respondent established a successful business in Ireland in 2015 and her daughter was in school in Ireland. On an access visit to Ireland in February, 2021, the respondent failed to return the child to Poland and this application, made under the Hague Convention of the Civil Aspects of International Child Abduction, followed in early course. The respondent relied on Article 13 of the Convention and made three submissions in that regard: one related to consent, the second to grave risk and the third to the objections of the child.

Held by Gearty J that on the facts of this case it did not appear that the applicant consented to the retention of the child in Ireland in February 2021, having withdrawn his written consent of 2017. Gearty J held that the expert’s report, together with the school report from Poland, GB6, weighed against any finding of grave risk. While the court carefully considered the views of the child, the objectives of the Convention and the social background considerations in this case combined to satisfy Gearty J that the law required the Court to order a return of the child to Poland.

Gearty J held that the law required the return of the child.

Application granted.

REDACTED

Judgment of Ms. Justice Mary Rose Gearty delivered on the 12 th of July, 2021

1. Introduction
1.1

This Applicant seeks the return of his son, named K for the purposes of this judgment. K was born in 2014, moved to Ireland in 2015 with his mother, father and half-sister, and remained with his mother when the parties' relationship broke down. In 2017, before taking the child to Poland, the Applicant signed an agreement in which he stated that he would not prevent the child returning to Ireland to live with his mother. The boy was then 3 years old and had not begun formal schooling.

1.2

Despite that written undertaking, K was made the subject of an ex parte custody order obtained by the Applicant father in Poland, in late 2017. The Respondent mother discovered that an interim custody order had been made in December, 2017. It is not clear whether or not the written agreement was disclosed to the Polish courts, but it appears that it was not, or at least not at that stage of those proceedings. Since 2017 the child had lived with his father and a court in Poland has now decided that he is habitually resident there. He is now 6 years of age.

1.3

The Respondent established a successful business in Ireland in 2015 and her daughter, a teenager, is in school in Ireland. On an access visit to Ireland last February, 2021, the Respondent failed to return K to Poland and this application followed in early course.

2. The Hague Convention and Council Regulation (EC) 2201/2003 – Burden of Proof
2.1

The application is made under the Hague Convention of the Civil Aspects of International Child Abduction [the Convention]. The Convention ensures international cooperation in respect of legal issues concerning child custody and welfare. The Convention requires that signatory states trust other signatories in terms of their social services and the operation of the rule of law in their respective nations. The Convention was created to combat the problem of the wrongful removal of children from the country in which they usually reside, usually by a parent, to the detriment of the child's relationship with the other parent. This international agreement recognises the normal incidence of relationship breakdown, which leads to the division of families between households and, given the ease of global re-settlement, between countries. It is recognised as an important policy objective for signatory states that parents respect the rights and best interests of the child and the custody rights of the co-parent in deciding to move to another jurisdiction, taking the child from her habitual residence and, potentially, from social and familial ties in that jurisdiction.

2.2

It is well established law that the Applicant in Convention / Regulation cases bears the burden of proof, the standard of proof is proof on the balance of probabilities, and the Applicant must establish that he had custody rights under the law of the country from which the child was removed and was exercising them at the time of removal. If an application was made within a year of removal, that removal is prima facie wrongful and the burden then shifts to the Respondent to establish one, or more, of the defences to the application.

2.3

There is no issue in respect of the following facts in this case: the Applicant is the father of K, and K was in his custody in Poland until the time at which he was retained in Ireland. His application was made within a year of the child being retained here. Thus, the retention of the child in Ireland was wrongful within the meaning of the Convention.

3. Defences: Consent, Grave Risk and Objections of the Child
3.1

The Respondent relies on Article 13 of the Convention and makes three submissions in that regard: one relates to consent, the second to grave risk and the third to the objections of the child. Article 13 concludes with the following direction:

“In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.

4. Consent
4.1

The consent argument rests, primarily, on the written agreement. The Respondent concedes that the written agreement of the parties, dated 14 th October, 2017, is now of “some vintage” to use counsel's phrase. It is very clear in its terms; “I, the undersigned [TW] …, am going with my son to Poland, but I promise not to raise any objections when his mother KW comes to see him in Poland and wants to return with him to Ireland. We made such an agreement, and it is in line with my conviction.” While this agreement should, of course, have been brought to the attention of the Polish courts in 2017, the fact remains that this Court is now considering an application in 2021 and events have overtaken the agreement. In exhibit KW3, in a text exchange this year, he refers to reporting a kidnapping in a reference to the Respondent retaining K in Ireland.

4.2

In the meantime, the Polish courts have considered both the ex parte application of the Applicant for custody of K in 2017, which was granted, and the Respondent's application, in March of 2021, to retain custody of K in Ireland, which was refused.

On the facts of this case it does not appear that this Applicant consented to the retention of K in Ireland in February 2021, having withdrawn his written consent of 2017. Consent was withdrawn against a backdrop of court proceedings in Poland from which the Applicant's intentions were clear; he reneged on the earlier agreement and sought to retain K in Poland. However, no proceedings where issued under the Convention at that time.

5. Grave Risk and Intolerable Situation
5.1

The grave risk defence is one that arises frequently in Convention / Regulation cases. It is well established that the kind of risk contemplated by the Convention is usually one that leads directly to the removal of the child and must constitute a real risk of serious harm to the child. It is self-evident from the facts of this case that the height of the Respondent's case in this respect constitutes allegations of drug-taking and swearing on the part of the Applicant and watching material which would be inappropriate for children, but her knowledge of these events dates back some years. It is not possible or necessary to decide as a matter of fact whether, or to what extent, these activities...

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