Irish court refuses return of ‘settled’ child to Poland

Family|March 15th 2017

The law in relation to applications for the return of children under the Hague Convention is, of course, the same irrespective of where the proceedings take place. It can therefore be just as instructive to read a foreign judgment in a Hague case as an English one.

Take, for example, the recent decision of the High Court of Ireland in the case JJ -v- PJ. The particularly instructive aspect of this was the effect upon the application of a considerable delay between the removal of the child from his ‘home’ country, and the making of the application.

The facts in JJ -v- PJ were as follows. The mother and father were married in June 2012. They lived together in Poland. Their son, ‘O’, was born in August 2012. Their relationship broke down in August 2014, and on the 29th of that month the mother abruptly left the home with the child. The father reported them missing the following day. The mother attended the police department on the first of September and, with some involvement on the part of the police authorities, the child was placed in the care of the father from that day.

From the 1st September 2014 to the 3rd October 2014 the child stayed with the father and the mother had weekly contact with him. On the 3rd October, according to the father, the mother removed the child from his crèche without his consent, under the pretext that the child had a medical appointment. On the following day, the mother sent a text to the father, saying “Do not look for me. I’m far away. We will get by”. The father immediately notified the police on the same date and filed a missing persons report on the same day. The police later informed him that the mother and child had travelled to Ireland.

The details of the father’s subsequent efforts to secure the return of O from Ireland are a little murky, but are set out by Ms Justice Ní Raifeartaigh in her judgment as follows:

“9. The father brought proceedings in the Polish courts on the 28th October, 2014. On the 28th November, 2014, a Family and Minors Division of the District Court in Zywiec made an order declaring that the mother had no consent to remove the child and that the father had full parental authority and should use the applicable law to return the child to Poland.

  1. On the 14th February, 2015, the father completed a document entitled ‘Request for Return’.
  2. He says that during 2015 he became concerned with the lack of progress on the application and that he engaged professional legal representation to manage the process.
  3. The [father] exhibited a letter from his lawyers dated the 8th July, 2016, some 16 months after his application, which explains to some extent what had happened in the interim period. It says that “the initial proposal with authorisation” was sent to the Polish authorities in April 2015, and that in the absence of a response “we wrote an email” in November 2015 and it turned out that the application had formal defects. Documents were sent again by email on the 2nd December, 2015, but again there were technical problems and on the 25th January, 2016, the applicant sent a request along with a power of attorney. There is no evidence of the applicant having taken any steps between the 14th February, 2015 and November 2015, when the email was sent on his behalf by his lawyers inquiring as to the progress of the case.
  4. The Special Summons in the case issued on the 26th October, 2016, more than two years after the removal of the child from Poland. There is no evidence before the Court as to what happened between the 25th January, 2016, when he sent the request together with a power of attorney and the 26th October, 2016, when the Special Summons issued.”

So in summary it seems that there were technical issues with the procedure, which may not have been the father’s fault, but nevertheless it seems fairly clear that the father did not pursue the matter as expeditiously or energetically as he might have done.

Meanwhile, the mother and O were building a new life in Ireland, living with the mother’s new partner. A half-sister was born in August, 2015, and O was attending pre-school, where he was making friends. His language skills had developed significantly since he began pre-school and he was able to partake in conversations with the other children in English without any difficulty.

So to the father’s application under the Hague Convention. This had a number of hurdles:

  1. Firstly, O had to be habitually resident in Poland immediately prior to the removal. Clearly, he was.
  2. Secondly, the father had to have ‘custody rights’ in respect of O. Again, clearly this hurdle was overcome: the parents were married at the time of the child’s birth, the father was named on the birth certificate, and the Civil Code of Poland contains provisions making it clear that he had custody rights in respect of his child.
  3. The next question was: had the father consented to the removal? The mother tried to contend that he had, relying for example on messages from the father to her on Facebook, in which he indicated a clear willingness to disengage from his son’s life and to hand over responsibility for him to the mother. However, Ms Justice Ní Raifeartaigh held that these did not indicate that the father consented to O’s removal from Poland. Further, the furtive manner in which the mother removed the child indicated that she believed the father was not consenting.
  4. The last two matters relate to the issue of the delay between the removal in October 2014 and the father’s application, which was made more than two years later. The first question was: had the father acquiesced to the retention of the child in Ireland after his removal to Poland? Ms Justice Ní Raifeartaigh found that he had not, as his application was proceeding throughout that two year period, albeit extremely slowly.
  5. The final matter was whether, as the proceedings had been issued more than one year from the removal, O had become settled in his new environment, in which case the Irish court could refuse to make an order for his return. Ms Justice Ní Raifeartaigh considered this in some detail, including the matters referred to above regarding O’s new life in Ireland. She concluded:

“I consider that the evidence of the mother and the pre-school employee, taken together, establishes a sufficient picture of a happy, well-adjusted child, who is interacting with his peers in the English language and expecting to start school with them next year, sufficient to satisfy the test that he is ‘well settled’ in Ireland and was so at the time the plenary summons issued in October, 2016. The evidence establishes more than a mere attachment to his mother, and presents sufficient evidence of his living in a family unit with his half-sister, and of being integrated into his local peer group.”

The father tried to argue that the court should still exercise its discretion to order the return of O, as one of the relevant factors was that the delay in issuing proceedings was by reason of administrative error and through no fault of his. However, Ms Justice Ní Raifeartaigh was not convinced that all of the fault lay with the administrative authorities. Further, the two year period was extremely significant in the life of such a young child.

In the circumstances Ms Justice Ní Raifeartaigh was of the view that the discretion in this case should be exercised against returning O to Poland. She said:

“This is a case in which considerable time passed, during which the child became increasingly settled in Ireland. In the words of Baronness Hale in Re M, this is no longer a ‘hot pursuit’ case, and the major Convention objective of securing a swift return to the country of origin can no longer be met. The delay is such that this primary objective cannot be fulfilled and the child “should not be made to suffer for the sake of general deterrence of the evil of child abduction worldwide”.”

It should be noted that, as with all Hague cases, the decision only relates to the narrow matter of whether the court should order the child’s summary return to his ‘home’ country. The case does not decide issues relating to where O should live, and what contact the other parent should have with him.

The full report of the case can be read here.

Photo of the Four Courts building in Dublin, home of the High Court of Ireland, by kieranlynam via Wikipedia under a Creative Commons licence

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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