W.A. v A.T.

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 13 March 2024
• Neutral Citation: [2024] IEHC 142

In the Matter of the Guardianship of Infants Act 1964

and

In the Matter of the Child Abduction and Enforcement of Custody Orders Act, 1991 and

In the Matter Council Regulation 2201/2003/EC and

In the Matter of J and K, Minors (Child Abduction; Best Interests of the Children)

Between:

W.A.

Applicant

and

A.T.

Respondent

and

The Minster for Justice Acting as the Central Authority

Notice Party

[2024] IEHC 142

THE HIGH COURT

FAMILY LAW

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

1. Introduction

1.1 This is an application by the father of two boys for their return to Ireland. The Respondent mother retained the boys in Poland without his consent. He is from a third country but has been resident here for many years. The Respondent mother removed these young boys, called J and K for the purposes of this judgment, in 2016, failing to return them after the Irish District Court refused her application to relocate but allowed a Christmas visit to Poland. At that time, the children were habitually resident in Ireland. The eldest is now under fourteen and the youngest is under ten years old.

2. Proceedings before the Polish Courts

2.1 The Applicant made an application in 2014 under Council Regulation 2201/2003/EC (“the Regulation”) when the Respondent took the older boy, J, to Poland. This Regulation provides for a swift summary procedure for the return of a child wrongfully removed from home by one parent without the consent of the other. The proceedings were withdrawn some months later when they returned home. The younger boy, K, was born in Poland, after which time the Respondent returned to the family home in Ireland with both boys.

2.2 The current application has a long and unusual history. It began with a relocation application by the Respondent, in the District Court in Ireland, which was refused. She then brought J and K to Poland for Christmas and never returned. The Applicant applied for the return of J and K under the Regulation, and the Polish court of first instance ordered that the boys be returned as they had been removed from their home without the consent of their father. While the Respondent raised the defence of grave risk, the defence was not established to the court's satisfaction. She appealed and the Circuit Court in Poland dismissed her appeal, again ordering that J and K be returned home.

2.3 The Polish Circuit Court's conclusion in 2018, included this comment:

“[the] failure of [the Respondent] to respect the decision of the Irish Court with regard to facilitating the contact of the children with their father and the return to Ireland at a specified time demonstrates the [Respondent's] focus primarily on her own objectives and aspiration as well as selective adherence to the applicable standards and rules.”

2.4 That decision was appealed, unsuccessfully, to the Polish Supreme Court which ruled that J and K must be returned as their removal had been wrongful. During the Polish proceedings, the Respondent moved her residence, apparently to avoid the return orders repeatedly made in that country.

2.5 It appears that the Minister for Justice in Poland initiated new proceedings in 2020. In a process which is hard to comprehend, a differently constituted Polish Supreme Court repealed the initial orders and directed yet another hearing in 2021. The case came before the Polish Circuit Court for a second time. That Court held that there was a grave risk if the children were returned to their father. The Court heard from both boys and was told that they objected to being returned. There was an inexplicable reference to allegations which had not been proven, or even pursued, in the courts in Ireland in terms of a failure “ to have the Applicant punished for his crimes” and reliance on an Irish District Court Barring Order without reference to the successful appeal to the Irish Circuit Court, overturning that Order.

2.6 The Polish Circuit Court now upheld the grave risk defence, referring to allegations of violence which had not been substantiated in the initial application in either the District or the Circuit Court in Poland. Bearing in mind that the parties had not lived together for any of the intervening time, it is difficult to see how the allegations carried more weight 4 years after she left, or how boys who had never complained about fear or violence before, claimed to remember suffering at the hands of their father.

2.7 The Applicant has listed several inconsistencies in these findings in written submissions but two give the tenor of the reasoning deployed in this case, from a theory on repression to a list of catastrophic effects that are listed as potential effects if these children are returned to their erstwhile home. It was held that:

“ The fact that the children do not remember their staying in Ireland does not mean that this period was not threatening in their emotional experience. Because if it were so, they would have said that they had been in Ireland, that they have some positive memories. It can be assumed with a very high probability that staying [there] in their experience was difficult and what had happened was repressed.”

That Court concluded:

“ Forced return of the children to Ireland would result in a loss of confidence in mum and dad, impaired self-esteem, impaired self-confidence, loss of belief that it is possible to express one's opinion and that this opinion would be respected. Consequently, this could lead to aggressive behaviours towards both the father and mother, oppositional and rebellious attitude escape into socially unacceptable environments, or the use of stimulants in order to cope.”

2.8 The Polish courts of first and second instance in 2018 had not apprehended any such risks. But the grave risk defence appears to be the reason for the reversal of the findings previously made by all the relevant courts, both in Ireland and in Poland. There appears to be no reference to the capacity of the authorities in Ireland to meet any risk presenting, which is another key factor to be proven before the grave risk defence can be established, as a matter of law, such as to justify not returning children to their habitual residence.

2.9 The Applicant relied on various decisions of the European Court of Justice (the “ECJ”) in a bid to persuade this Court to override the non-return order in this case. These decisions have been critical of the Polish legal system, in particular, European Commission v. Republic of Poland, Case C-619/18, 24th of June 2019, a case which contains comments on the erosion of judicial independence in Poland. At paragraph 58, the ECJ noted “ that requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law will be safeguarded”.

2.10 Due to the rule of law concerns that have been raised here, this is a factor which the Court must address directly. The independence of the judiciary is a fundamental value for those nations which claim membership of the European Union, which is based on adherence to the principle of the separation of powers. That principle can only be supported by maintaining the separation of government, legislature and the judiciary. The judiciary must be committed to the rule of law and must be independent of government. A judiciary which is dependent on the government of the day thereby opens the door for autocratic government, for rulers who do not themselves obey the law, for insufficient checks on power and creates the potential for dictatorship and the erosion or elimination of human rights that arbitrary rules inevitably bring in their wake.

2.11 The unusual procedural history and the stated basis for contradictory decisions in the Polish courts make this a case which is difficult to explain, when viewed from the vantagepoint of another jurisdiction. However, it is also important to note the actual evidence before the Court, to assess the Applicant's submissions and recognise the limits of this Court's ability to investigate or assess the process or the result. I set this out clearly as the rule of law is never something to be taken for granted; its precepts guarantee the safety of citizens from arbitrary changes in the law and from the erosion of their fundamental rights. Judges must oppose interference with the rule of law. But that comment applies equally to this Court, as it does to Polish courts. This Court must be careful not to reach conclusions which are not supported by evidence, assessed after a fair hearing. What the Court was invited to do involves an assessment of the Polish legal and political system, based on the outcomes in this case. Any such conclusion is beyond the power of the Court in these proceedings.

2.12 While courts must guard against injustice, in this case, what is relied upon is an adverse decision to this Applicant, with a reasoned basis, which contradicts another court of the same jurisdiction, coupled with an unusual second reference of the same case to the courts by a political actor, rather than by a judge. It is a leap of logic to move from this factual position to a conclusion that the final decision was a political one, or one that was not made independently, which, if I uphold it, constitutes an attack on the rule of law.

2.13 The Court was also asked to consider a reference to the ECJ as to how this case might be decided, taking this unusual history into account. Two factors militate against this. Firstly, the legal reality is this: there is strong evidence that the children must remain in Poland. The...