Judgment Title: A.K -v- A.J
Neutral Citation: 2012 IEHC 234
High Court Record Number: 2011 11HLC
Date of Delivery: 08/06/2012
Court: High Court
Composition of Court:
Judgment by: Finlay Geoghegan J.
Status of Judgment: Approved
NEUTRAL CITATION  IEHC 234
THE HIGH COURT
[2011 No. 11 HLC]
IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT 1991, AND IN THE MATTER OF THE HAGUE CONVENTION AND IN THE MATTER OF COUNCIL REGULATION (EC) 2201/2003
IN THE MATTER OF H. J. AND D. J. (CHILDREN)
JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 8th day of June, 2012
1. This application pursuant to the Hague Convention on the Civil Aspect of International Child Abduction ("the Convention") and Article 11 of Council Regulation (EC) 2201/2003 ("the Regulation") is in respect of two boys, H., born on 5th June 2002, and now ten years of age, and D., born on 17th September, 2004, who is now seven years old. The application is for the return of the children to the jurisdiction of the courts of Poland.
2. The applicant is the mother of the boys and the respondent is the father of the boys. The mother and father were never married to each other. They were in a relationship which appears to have ended some time after the birth of D. and before the summer of 2008.
3. The father came to Ireland in 2003 after the birth of H. and prior to the birth of D.. He has set up a small business which he continues to operate, apparently successfully, to the present time. Since approximately 2007, he has been in a relationship with B., a Polish woman. She is and has been for some years his partner. They were living together in Ireland prior to the summer of 2008. They now also have a daughter together, born in 2011.
4. The mother and the father both come from a relatively small town in Poland. The mother and the boys continued to live there after the father came to Ireland. The father contributed to the maintenance of the boys. There is a dispute as to the extent of same which is not relevant to any issue which this Court has to determine.
5. In June 2008, the mother agreed that the boys would come on holidays to stay with the father in Dublin. They were to return to Poland prior to the end of June. The father did not return the boys to Poland as agreed. The father retained the boys in Ireland without the consent of the mother in June 2008. Since that date, they have lived with the father and his partner, B. and have attended a local primary school in Dublin.
6. It is admitted, for the purposes of these proceedings, that the retention by the father of the boys in Ireland in June 2008 was a wrongful retention within the meaning of Article 3 of the Hague Convention. This wrongful retention forms part only of the basis of the mother's application for return.
7. The father took the boys to Poland for Christmas in December 2010. At the end of December 2010 or early January 2011, the father took the boys out of Poland and to Ireland without the consent of the mother. He states he arrived back in Ireland on 5th January, 2011. On behalf of the mother, it is contended that this was a wrongful removal of the boys from Poland which remained the country of their habitual residence in December 2010. I propose referring in the judgment to this removal as of December 2010. Nothing turns on whether the father and the boys left Poland at the end of December 2010 or in the first days of January 2011. The father disputes that this was a wrongful removal of the boys from Poland within the meaning of Article 3 of the Convention as he contends that the mother did not seek to prevent them leaving and by this time, the boys were no longer habitually resident in Poland. He contends that they had acquired a habitual residence in Ireland. On behalf of the mother, it is also contended that such removal was in breach of rights of custody then held by the courts of Poland by reason of extant custody proceedings.
8. The present proceedings are unusual in a number of respects. First, the father has been living in Ireland since 2003, the initial wrongful retention commenced in June 2008, and these proceedings were only commenced by the mother on 31st May, 2011, pursuant to an authorisation signed on 6th April, 2011. Secondly, even after the commencement of the proceedings, the fixing of a hearing date was exceptionally delayed by reason, primarily, of difficulties in communication between the mother in Poland who speaks no English and her Irish lawyers. Thirdly, whilst the father had been legally represented up until the date of the hearing, the Court granted his lawyers leave to come off record on the morning of the hearing. The Court was satisfied that the father did not comply with agreements made with the lawyers in relation to his representation and failed to give appropriate instructions. The father represented himself at the hearing with the assistance of an interpreter. However, understandably, he was not familiar with the complex legal provisions and principles at issue. Fourthly, since September 2008 there have been custody proceedings initiated by the mother before the Polish District Court- in K.- in which both parties participated and in which by a decision of 16th February, 2012, parental care for the boys was given to the father. Fifthly at the hearing on 29th March, 2012, the Court was asked not to give its judgment until such time as the justification of the Polish District Court - in K. - for its decision of 16th February, 2012, was translated into English and made available to the Court. The justification had only become available to the parties in the preceding days. At the request of counsel for the mother, a further short hearing was held on 22nd May to enable submissions be made in relation to the justification and the fact of the appeal lodged by the mother against the order of the Polish District Court of 16th February, 2012.
9. The evidence in this application included all the affidavits sworn by the parties and exhibits thereto; the report of Dr. Byrne-Lynch dated 12th February, 2010, following her interviews with the boys on 25th and 31st January, 2012; oral evidence from Dr. Byrne-Lynch; oral evidence of the father and the mother on limited cross examination of some matters deposed to in the affidavits and the petition, orders and justification of the Polish District Court and notice of appeal therefrom.
10. The Court, in this application, is exercising a limited jurisdiction. It is not an application to decide on the care or custody of the boys. The relationship between the father and the mother has regrettably broken down. There are many allegations made in relation to each other. Most are not relevant to the issues which this Court has to determine and it is not proposed to make any findings in relation to them in the judgment and only to refer to them where necessary. They are a matter properly for consideration by the Court with jurisdiction to take decisions in relation to the future care or custody of the boys. Nevertheless, a summary chronological factual history is necessary.
12. In August 2008, the mother states she came to Dublin and sought with the assistance of the gardai to find her children. She did not find them. The father contends that she had his mobile phone number at the time but does not assert that he told her where the children were living. The father changed their place of residence from time to time.
13. On 15th September, 2008, the mother filed a petition with the Regional Family Court in K. seeking sole parental authority over the boys and asking that the father be deprived of parental authority. The address given by her for the father was his parents' address in K. and it was stated that his address in Ireland was unknown.
14. The justification of the Polish District Court for its decision of 16th February, 2012 ("the justification") records that the father made a request to a Family Law court in Dublin in August 2008, which fixed a date of 2nd October, 2008, for the trial. This Court has not been given details of those proceedings. It appears probable that this was the District Court in Dublin. The justification indicates it refused jurisdiction to deal with the matter and there were further communications between the Court in K. and the District Court throughout 2009 in relation to potential assessments which did not bear fruit.
15. The first hearing in the Polish court took place on 26th March, 2009, and the father attended.
16. In October 2009, the mother came to Dublin, visited the father at his place of business and saw the boys on one occasion. The father had provided his business address to the Polish Court during 2009. He states that this has been his consistent business address since 2008.
17. On 16th February, 2010, the Polish Court, in the Polish proceedings, made an order that for the duration of the court proceedings, the place of residence of the boys be with their mother. No steps appear to have been taken to seek to enforce that order in Ireland.
18. In November 2010, the mother travelled again to Ireland and went to the school being attended by the boys. She saw the Principal of the school. It is unclear whether she saw the boys. The mother's brother has resided in Ireland throughout this period.
19. In December 2010, the father took the boys to Poland for Christmas. He states that they met with the mother and her parents and his parents during the visit. This is not disputed. The mother's father is a retired policeman. The father received a telephone call from a local policeman and states that he was asked whether the boys were "ok" and also to call to the police station but that he indicated he had no time and did not do so. He also states that shortly thereafter, he left Poland by car with the boys. He had travelled to Poland in his Irish registered car and states that this would be easily identifiable in his local area in Poland and he did not seek to hide that he was there.
20. The Polish proceedings continued throughout 2011. In May 2011, H. made his First Holy Communion in Dublin. His maternal grandmother and maternal uncle attended. The mother was invited but states that due to a new job she was unable to travel.
21. On 31st May, 2011, these proceedings were commenced. The Irish solicitors had not been instructed with the home address of the father. Ultimately, he was served on 24th June, 2011, at his business address. The father, with the assistance of legal representation, delivered a replying affidavit sworn on 11th July, 2011.
22. On 27th July, 2011, the Court made an order that the boys be interviewed and assessed by Dr. Byrne Lynch for the purpose of giving them an opportunity to be heard in the proceedings in accordance with Article 11(2) of the Regulation. Throughout the autumn of 2011, counsel acting on behalf of the mother, sought adjournments to enable instructions to be taken from the mother. The interview of the boys was postponed until after the mother had had an opportunity of delivering a replying affidavit. Ultimately, on 2nd November, 2011, the father issued a motion seeking an order dismissing the proceedings for want of prosecution. The solicitor acting for the mother in this jurisdiction delivered an affidavit outlining difficulties associated with interpretation and communication with the mother. The Court determined that the interview with the boys should go ahead in January 2011 and in February 2011, fixed a hearing date and indicated that the matter should proceed even if no replying affidavit had been delivered by the mother. Ultimately, an affidavit sworn on 6th March, 2011, was delivered. Further complications had arisen in communications between the Irish solicitors and the mother. The Court made an order admitting the affidavit.
23. The mother travelled to Ireland for the hearing on 29th March, 2011.
24. The boys were interviewed on two occasions: on 25th January and 31st January, 2011, by Dr. Byrne-Lynch. Dr. Byrne-Lynch did not interview, by direction of the Court, any other person in relation to the proceedings.
25. On 16th February, 2012, the Polish court, in the proceedings brought in September 2008 by the mother seeking sole parental custody and limiting the custody rights of the father, decided (as translated):
2. To entrust the parental care of minors H. J., born on 5 June 2002 in K., and D. J., born on 17 September 2004 in K., directly on the father- A. J., and to restrict the parental care with regard to the mother - A. K. in such a manner that she reserves the right to the mutual decision of the parents regarding such significant matters of the minors as establishing the place of their stay, the method of disease treatment as well as the organisation and place of their entertainment."
26. In April 2012, the mother lodged an appeal against the decision of the K. District Court of Family Law dated 16th February, 2012 which is due for hearing shortly. The father has stated he proposes attending the hearing in Poland.
(ii) the alleged wrongful removal or retention was in breach of rights of custody held by her or the Polish courts; and
(iii) the alleged custody rights were actually exercised or would have been exercised but for the removal or retention.
29. Notwithstanding the obligations imposed on a court by Article 12 of the Convention, Article 13 provides that the Court is not bound to order the return of the child in certain exceptional circumstances. The one relevant to the facts in this application is if the Court finds "that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views". The onus is on the person opposing the application i.e. the father to establish that the child does object to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. If those facts are established, then the Court has discretion as to whether or not to make an order for return and the principles according to which that discretion should be exercised are referred to in more detail below.
30. It is important to note that a decision made by the Irish High Court on this application for return is expressly provided by Article 19 of the Convention not to be taken to be a determination on the merits of any custody issue. Article 1 and the caselaw relating to the Convention establishes that the purpose of the Convention is to secure the prompt return of children wrongfully removed or retained in another Contracting State to the State of habitual residence. One of the primary underlying principles is that it is in the best interests of a child that the courts of its habitual residence determine disputes in relation to the child's care and custody as they are best placed to do so. The objects of the Convention also include the protection of children from the harmful effects of wrongful removal or retention and deterring wrongful removal or retention of children from one Contracting State to another.
32. As the proceedings were not commenced within 12 months of June 2008, it is necessary for the purposes of the application of Article 12 to determine whether or not there was a wrongful removal in December 2010. The first issue which requires to be determined in relation to the alleged wrongful removal in December 2010 is whether the boys, in December 2010, remained habitually resident in Poland, or, as contended by the father, that their habitual residence had changed to Ireland. As the agreed starting point is that the boys were habitually resident in Poland until 2008, the onus is on the father to establish that there was a change in habitual residence between June 2008 and December 2010.
33. It is settled law in this jurisdiction that habitual residence is not a term of art but a matter of fact to be decided on having regard to the evidence in the case (C.M v. Delegation Provincial de Malaga  2 IR 363 per McGuinness J. at p. 381).
34. Counsel for the mother submits that it is now settled law that where, as on the facts herein, both parents have parental responsibility in relation to the children, that one parent cannot unilaterally change the habitual residence of the children without the express or tacit consent of the other parent or an order of the Court. She relies, amongst other matters, on the judgment of Sir Nicholas Wall P. in the English High Court in S. v. J  EWHC 1113, where he stated:
36. The approach of the Irish courts to the construction of the Hague Convention has been expressed by Fennelly J. in the Supreme Court in PAS v. AFS  1 ILRM 306 at 314, in the following terms:
38. Accordingly, it appears to me that on the facts herein, the father, to establish that the habitual residence of the boys changed from Poland to Ireland by December 2010, must prove that prior to December 2010, the mother had acquiesced in the boys living in Ireland. There is no allegation that she gave express consent.
39. I have concluded on the evidence before me that the father has failed to establish that the mother acquiesced in the boys living in Ireland prior to December 2010. Whilst it is true and a fact relevant to these proceedings that the mother did not commence this application pursuant to the Hague Convention in Ireland until May 2011, nevertheless, she did commence proceedings in Poland in September 2008, promptly after the boys were retained, seeking sole parental custody and seeking to limit the father's rights of custody in relation to the boys. Further, she pursued those proceedings throughout 2009, and in February 2010, obtained an order from the Polish courts that the place of residence of boys should be with her for the duration of her Polish proceedings. Whilst she did not take steps to enforce that order in Ireland, she continued to pursue the Polish proceedings, the aim of which appears to have been to obtain an order that the boys should return to live with her in Poland. The pursuit of the Polish proceedings is inconsistent with acquiescence to the boys remaining living in Ireland with their father.
40. Hence, I have concluded that the father has failed to establish that the habitual residence of the boys changed from Poland to Ireland prior to December 2010 and that the boys remained habitually resident in Poland in December 2010.
41. The second issue which arises in relation to the removal of the boys from Poland to Ireland by the father in December 2010, is whether the removal was in breach of the custody rights then held by the mother. The father contests this on the basis that the mother did not object to the father removing the boys from Poland. The mother continued to hold parental authority and had the benefit of the Polish Court order of February 2010 that the boys reside with her at her place of residence in Poland. In the absence of an express consent by the mother to the boys being removed from Poland by the father, I have concluded that the removal of the boys from Poland in December 2010 was in breach of the custody rights then held by the mother. Hence, it was a wrongful removal within the meaning of Article 3 of the Convention.
42. As the present proceedings were commenced within one year of the wrongful removal of the boys from Poland in December 2010, the issue of settlement under Article 12 does not arise and it follows that this Court is obliged pursuant to Article 12 to make an order for the return of the boys to Poland unless one of the exceptional circumstances provided for in Article 13 of the Convention applies. It is therefore necessary to consider the defence made that the boys object now to being returned to Poland and are of an age and degree of maturity at which it is appropriate to take account of their views.
43. In accordance with current practice, the boys were interviewed by Dr. Byrne- Lynch, an experienced child clinical psychologist. They were interviewed on two occasions. The boys, in interview, expressed an objection to returning to live in Poland in circumstances where their father and B. continue to live in Ireland. Dr. Byrne-Lynch makes clear that the boys' objections to returning to Poland relate mainly to their wish to stay living with their father and B.. Dr. Byrne-Lynch records that they indicated that they would be prepared to return to Poland if their father and B. were moving there, although they prefer living in Ireland.
44. The proper approach of the courts in Ireland to the determination as to whether a child objects to being returned to its country of habitual residence, and if it does, to the exercise of the discretion given it under Article 13 of the Convention, has recently been set out by the Supreme Court in A.U v. T.N U.  IESC 39. Denham C.J., in delivering the judgment with which the other members of the Court agreed, stated at para. 27:
46. On the facts herein, I am satisfied that the boys do now object to being returned to Poland and, accordingly, the Court should consider whether they are of an age and degree of maturity at which it is appropriate to take account of their views.
47. Dr. Byrne-Lynch's assessment, which I accept, is that the boys presented to her with maturity levels roughly in line with their ages, then of nine and seven. At those ages and at the level of maturity, I have concluded it is appropriate to take account of the boys' views. However, the weight to be attached to those views by the Court in exercising its discretion is a quite separate matter.
48. The determination that the boys object to being returned to Poland and that they are of an age and degree of maturity at which it is appropriate to have regard to their views gives the Court discretion pursuant to Article 13 as to whether or not to make an order for the return of the boys to Poland.
49. In A.U. v. T.N.U., Denham C.J., agreed with the analysis of Baroness Hale in Re M (Abduction: Zimbabwe)  1 AC 1288, where, at para. 46, she stated:
36. It is also the case that in interpreting and applying Article 13 of the Convention that courts should not lightly exercise a discretion to refuse to return a child to his or her country of habitual residence since that would risk undermining the effectiveness of the Convention in both remedying and deterring the wrongful removal of children from the jurisdiction of the courts in such country. Furthermore, those courts are normally best placed to determine the respective rights of parents and in particular where the best interests of a child lie, which is of primary importance. However, as already pointed out, the Court has discretion pursuant to Article 13(b) in having regard to objections of a child to being returned to his or her country of habitual residence, as outlined above. The circumstances in which children would not be returned are exceptional. As Article 13 states, in considering the circumstances in which an exception may be made to returning a child to such country, the court may take account of information provided to it from a competent authority concerning the child's social background. As was pointed out in the case of R.M (Abduction: Zimbabwe) 1 AC 1288 the extent to which the child's objections 'coincide or are at odds with other considerations' which are relevant to his or her welfare are also relevant."
'But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be'. A court should at all times seek to expedite cases arising under the Hague Convention, but circumstances such as have arisen in this case are the exception."
52. Applying the above principles to the exercise of the Court's discretion under Article 13 of the Convention, I have concluded that I should not now make an order for the return of the boys to Poland. The factors which I have taken into account in reaching this conclusion include the following.
53. The starting point of my consideration is the policy of the Convention in favour of the prompt return of children wrongfully removed or retained to their country of habitual residence. Allied to this is the underlying principle that the child's best interests are served by the courts of its habitual residence, making decisions in relation to its future care in the event of disputes, as they are best placed to do so. In my judgment, the courts of Poland are best placed to resolve custody disputes in relation to the boys. All members of the family units are Polish.
54. On the facts herein, a prompt return following the initial wrongful retention in June 2008 or even the later wrongful removal in December 2010 is not now feasible. The lapse of time between June 2008 and the hearing in March 2012 is, in my judgment, a crucial factor as to how the Court should now exercise its discretion. It must be noted that the mother did not, in her affidavit, offer any explanation as to why proceedings were not commenced in Ireland prior to May 2011. The Court has noted that the mother brought the proceedings in Poland without legal representation and the difficulties of communication between the Irish lawyers and the mother. The Court is not seeking to apportion blame for this to the mother, but objectively, the failure by the mother to commence the proceedings has had the effect that the boys have now been living in Ireland for almost four years. In the case of the younger boy, he was not yet four when he came to Ireland and has lived approximately fifty per cent of his life and his older years in Ireland. It is relevant that, whilst the father did not disclose the address at which the children were living in Dublin, the mother, at all material times, was aware that the children were living with the father in Dublin and at least from 2009, was aware of the business address of the father in Dublin. Accordingly, I have concluded that the father cannot be held responsible for the delay in commencing the present proceedings in Ireland.
55. The children are still relatively young, although H., the elder, is now just ten. They have a maturity consistent with their ages. In general, it is exceptional for the Court to refuse to return children of these ages by reason of objections expressed by them. However, it may be appropriate to do so in exceptional circumstances as was done in A.U v. T.N.U. As is clear from the report of Dr. Byrne-Lynch, that whilst the objections to returning to Poland have been independently formed, they arise from the boys' current emotional attachments to their present family unit with their father and his partner, B., and their infant sister, and have also been influenced by a negative picture painted of their mother. The emotional attachments have formed by reason of the length of time they have been living with their father and B. in Ireland. If the Court had heard this application within six months of the boys' wrongful retention in Ireland, it is probable that a very different picture would have been presented to the Court. The objections now made by the boys are understandable and consistent with the facts which on the evidence pertain to them.
56. The Court has noted with great concern the following information contained in Dr. Byrne-Lynch's report which she wished to bring to attention of the Court:
2. D.'s primary emotional attachment appears to be to B. and H. is also strongly attached to her, both referring to her as their mother. A reintroduction of their mother as a significant figure in their lives will have to be accomplished carefully. She is virtually a stranger to D. He, in particular, is vulnerable to emotional disturbance with any significant degree of disruption to his present family unit. The strong attachment between the boys is a protective factor, offering them added security."
58. The other highly unusual feature of this case and crucial in the exercise of my discretion is the decision made by the Polish District Court on 16th February, 2012. It is clear from the justification that this was a decision made by the Polish Court in accordance with what, in translation, is referred to as "a dominant feature in Polish Family Law, namely, the welfare of the child". It is stated to be the "most crucial Directive in relation to parental custody and child's matters". The justification makes clear that the Polish District Court was aware that the boys are living in Ireland with their father. Having carefully considered all the relevant matters in accordance with the evidence available to the Polish District Court, it determined that the boys should be placed in the parental care of their father, the clear consequence of which is that they are permitted to remain living in Ireland with their father.
59. Counsel for the mother submitted that notwithstanding this determination at first instance, this Court should exercise its discretion to make an order for the return of the boys to Poland in order that they be available for assessment in Poland and available to the Polish courts for an appeal hearing. In circumstances where the Polish Court, at first instance, has determined that the boys should remain living in Ireland with their father, it does not appear to me that this Court should exercise its discretion under Article 13 to make an order for the return of the boys to facilitate an appeal where no Polish court has required the boys to so return. On the facts herein, having regard to the Polish proceedings in which both parties are participating, the Courts of the boys' habitual residence are making the decisions in relation to their care and custody.
60. I have further taken into account the provisions of Article 11(6) to (8) of the Regulation in rejecting this submission made by counsel for the applicant. These provide:
7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seised by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child. Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time limit.
8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child."
(ii) An order pursuant to Article 11(6) of EC Regulation 2201/2003 that a copy of this judgment, the order of the Court made pursuant thereto, the transcript of the hearing before the Court, the report of Dr. Byrne-Lynch and the pleadings, affidavits of the parties and exhibits thereto be transmitted to the Central Authority for Poland and the K. District Court at which the appeal taken by the mother is lodged.
(iii) An order permitting the parties to disclose to their Polish lawyers the above documents for the purpose of use in any Polish proceedings in relation to the boys named in the title.
Despite their differences, the Court is certain both the mother and father want what is best for their sons. They are the people who know them best and what is likely to be best for them. It appears probable that the mother and father will be living in Poland and Ireland respectively in the short to medium term. It is essential for the wellbeing of the boys that they have a good relationship with each of their mother and father. To achieve this, they need the permission of each parent to have a relationship with the other. They also need secure arrangements put in place which will allow them move freely between the homes of each of their parents without any concern as to their ability to return. It is to be hoped that within the Polish court system, there may be assistance available to the father and mother to reach their own agreement as to the appropriate living arrangements for the boys during school terms and during holiday periods for the next few years and that the father and the mother will make every effort in the interests of the boys to reach such an agreement.