[2025] IEHC 280
Record No. 2024 8 HLC
THE HIGH COURT
FAMILY LAW
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, 1980
AND
IN THE MATTER OF COUNCIL REGULATION (EU) 2019/1111
AND
IN THE N. T., A MINOR
BETWEEN:
M. T.
APPLICANT
AND
R. L.
RESPONDENT
JUDGMENT of Ms. Justice Nuala Jackson delivered on the 10th March 2025.
INTRODUCTION
1. These proceedings are for the return to Poland of a seven year old child in circumstances in which the Applicant alleges that she was wrongfully removed to and/or retained in Ireland by the Respondent at some point during 2023. One of the significant concerns arising in this case relates to delay, including post-proceedings delay, but I will reference this further below. In this context, I have appended a chronology to this judgment in the hope that examination of it will identify approaches which might be made to address delays such as have occurred in the present case.
2. These proceedings were instituted by Special Summons issued on the 2nd May 2024. There are many uncontested facts as between the parties. I will detail these at the outset.
UNCONTESTED FACTS
(i) The child was born in Poland in 2017.
(ii) The Applicant is the father of the child.
(iii) The Respondent is the mother of the child.
(iv) The parents of the child have never been married.
(v) The parents were in a relationship together between 2014 and 2022, the Respondent contending that there were separations during this time but it is common case that the eventual separation was in or about March 2022.
(vi) It is accepted by the Respondent in written submissions filed that the child was habitually resident in Poland prior to coming to live in Ireland.
(vii) There were numerous applications (criminal and civil) brought by and concerning the parties on different occasions before the District Court in [REDACTED], Poland including:
(a) The Applicant convicted of an offence of domestic violence against the Respondent on the 7th November 2018. The judgment of the court references acts of physical violence against the Respondent and references that he did "by acting unintentionally, he caused an impairment of the functioning of the body organs of [NT] in such a way that during the blow to [RL], who was holding her 9-month old daughter, [NT], he hit her, as a result of which she unintentionally sustained bodily harm in the form of a bruising behind her right ear, which caused an impairment of the proper functioning of her body organs for a period of less than seven days." (redacted)
(b) Order for maintenance 26th July 2018 (default alleged);
(c) Order of the 22nd October 2018 providing for the child to reside with the Respondent with access to the Applicant. The Applicant (at paragraph 10 of her first replying Affidavit) sought to advance the suggestion that such Order entitled her to reside anywhere with the child. This patently cannot be so as first, the access provided to the Applicant was only achievable if the Respondent resided in Poland and, secondly, if she truly so believed, there would have been no need for her to bring a relocation application in September 2023. In addition, at paragraph 35 of the Respondent's first replying Affidavit herein, she avers:
"I accept that the Applicant access rights are incompatible with my residing in Ireland and that is why they need to be changed";
(d) Agreed terms of access were entered into on or about the 30th June 2022 (unsupervised weekly daytime and weekend overnight together with holiday access) subject to complete sobriety on the part of the Applicant. In the course of the within proceedings, the Hague Liaison mechanism was used in order to endeavour to ascertain the position concerning extant applications before the Polish Courts. In this context, a reply indicated that a case had been initiated on 2.06.2022 ex officio for the issuance of orders with a decision having been made on 2.06.2022. obliging participant RL to continue psychological therapy, and participant MT to abstain from alcohol abuse. I was further advised that this case is closed. In the context of the dates proffered, it would appear that the proceedings of early June 2022 were superseded by the agreement of the parties of the 30th June 2022.
(e) A Decision of the Assistant Public Prosecutor of the 17th February 2023 prohibiting the Applicant from contacting the Respondent directly or indirectly, from approaching her close than 30 metres and twice weekly visits to a police station. In addition, the Applicant was prohibited from leaving Poland. This Decision would appear to have been made in the context of criminal charges brought against the Applicant concerning alleged threats and violence against the Respondent in or about February 2023;
(f) There was an appeal from (e) above to the District Court Criminal Division amending the Decision made at that time so that it did "not apply to contacts related to matters regarding the care of the daughter of the suspect and the injured party, N., however the remaining scope of the contested decision will be maintained" (14th April 2023);
(g) Applications (referenced below) would appear to have come before the Court on a date in June 2023 and some evidence was heard but no Orders were made and the matter was adjourned to 27th October 2023;
(h) An Order of the 27th October 2023 provided for supervised daytime contact between N and the Applicant. The Respondent avers that the Polish court did not order her return on this date. However, neither did it make an Order permitting the child to relocate. It is difficult to understand how the access order made on that date could have been implemented without the child being in Poland. The Applicant avers that the Respondent on this occasion acknowledged the illegality of her actions in bringing the child to Ireland to the Court and apologised for this. This is a matter in dispute;
(i) There was a criminal conviction of the Applicant in respect of threatening behaviour towards the Respondent involving a threat relating to "deprivation of life and bodily harm" together with a co-accused. The charges relate to the same criminal charges in the context of which the Decision and Order at (e) and (f) above were made. The date of this conviction was the 31st October 2023. The penalty imposed involved a fine and a restriction on approaching the Respondent and additionally is stated to include "the period of detention from 16.02.2023 to 17.92.2023";
(j) An appeal of (i) above determined on the 24th July 2024 would appear to have been unsuccessful.
(k) The Applicant would appear to have further appealed this decision at (j) above which appeal was accepted on the 31st October 2024. The Applicant has exhibited a letter from his lawyer which, inter alia, states "..., the judgment does not apply until the appeal is considered by the court of higher instance, in this case, by the Circuit Court in [REDACTED].";
(l) In the context of these appeals, it appears that the preventive measures of the 17th February 2023 (as amended by Order of the District Court of the 14th April 2023) (ref. (e) and (f) above) remain in place as the Applicant had to apply for a variation of these measures in order to leave the country for the scheduled hearing of this matter in December 2024 which variation was made by court order of the 26th November 2024. One of the issues which requires to be considered in the context of this judgment is whether or not the Applicant has acted in breach of these preventive measures. In this regard, the Respondent avers (at paragraph 14 of her first replying Affidavit):
"I further believe that recent correspondence seeking access by the Applicant is again his efforts at manipulating the court system. He has open contact with the Child. He is not restricting (sic) from contacting her, only me. The Applicant made no effort to contact his daughter since 31st December, 2023 until recently which I suspect is due to advice from his lawyers."
Furthermore, referring to the child's visit to Poland in March 2024, the Respondent avers at paragraph 32 of her first replying Affidavit:
".... The Applicant made no effort to contact the Child over whatsapp during her time in Poland despite knowing she was there."
I will consider this further below.
(m) Allegation of theft made by Applicant against the Respondent which was dismissed is referenced at paragraph 29 of her first replying Affidavit. No decision was produced in this regard. It is unclear if this is the same complaint that is referenced in paragraph 43(ix) of the Respondent's first replying Affidavit sworn herein.
(n) An Order of the 19th March 2024 would appear to have been made in the context of the Respondent's relocation application. This Order would appear to have included the psychological assessment of the child by the relevant professional services in Poland;
(o) It would further appear that an application was made by the Applicant for the imposition of a fine upon the Respondent for non-compliance with contact order (referred to in the first affidavit of the Applicant of the 15th May 2024 at paragraph 7 and in the first replying Affidavit of the Respondent of the 10th September 2024 at paragraph 29). Information concerning this came in the context of the Hague Liaison mechanism which indicated that a decision was made on February 7, 2025. The Respondent "was threatened with an order to pay the Applicant a sum of money in the amount of 1000 PLN for each violation of the obligations arising from the decision of the District Court in [REDACTED] dated October 27, 2023, ref. no. III Nsm 1695/22 on establishing his contacts with the child. This case is closed." It would appear to be common case that the Respondent has now appealed this Order.
(p) There is a further indication that the Applicant has been involved in bankruptcy proceedings and that he was been declared bankrupt on the19th June 2024. The reasons for such bankruptcy are a matter of dispute.
(viii) The following applications are pending before the Polish courts:
(I) Application of the Respondent to suspend access date the 10th May 2023;
(II) Application of the Applicant for contact/enforcement of contact also commenced in May 2023, it would appear by way of counterclaim to the application at (I);
(III) Application of the Respondent for permission for the child to travel to Ireland made on the 13th September 2023 (this would appear to have been served on the Applicant on or about the 27th September 2023). This application would appear to have been before the Polish courts on a number of occasions and has been adjourned as the psychological assessment and report are awaited. I endeavoured to ascertain the likely timeline for the completion of this application but I have been unable so to do;
(IV) Maintenance default by the Applicant is apparently with the bailiffs in Poland. It is unknown to me if this is a court application or involves some other procedural mechanism nor am I aware of the progress of such enforcement application. Strategic bankruptcy by the Applicant is averred to by the Respondent and disputed by the Applicant.
(ix) The Respondent is in a new relationship (she accepts that this has been ongoing since October 2022) and, prior to his recent and on-going incarceration, she was living with her new partner in Ireland. This relationship was ongoing at the time of the removal/retention of the child. Subsequent to the oral hearing herein and in the context of requesting the parties to address the information received through the Hague Liaison mechanism, it became clear that the Respondent's partner has been charged with very serious criminal offences in Ireland and he is currently incarcerated, a bail application having been unsuccessful. In the context of this additional information, the Respondent made the following written submission concerning it:
"My partner, AB, was detained following the discovery of narcotics in vehicles located on the premises of his company; however, he does not admit to these allegations. I also do not believe in these accusations and am convinced that he will be exonerated. I suspect that one of his employees exploited access to my partner's company assets. The case is recent and was as much of a surprise to me as it was to him. Should the charges be confirmed, I will, of course, not continue my relationship with him. At present, I am approaching this information with caution."
(x) The Applicant has not had face to face physical contact with the child since February 2023 save for one incident when the Applicant attended at her school in or about May of 2023 when the child became extremely distressed. That the child was very distressed on this occasion is common case and is confirmed by correspondence from the school but the cause of such distress is in dispute. It would appear that the child was brought to Poland for supervised access in accordance with the Order of the Polish courts of October 2023 in or about March 2024 but that this did not take place. The report of the supervisor indicates that the Applicant turned up for supervised access as per the Order of the Polish court but that the Respondent did not attend. It would appear to be accepted that this lack of success was due to reticence on the part of the child but the cause of such reticence is at issue between the parties. This reticence on the part of the child was reported by the Respondent to the supervisor in advance of the visit but the child was not brought to the venue so there is no contemporaneous assessment by or account of the supervisor;
(xi) The Respondent has made many accusations to the police concerning the behaviour of the Applicant and the Applicant has likewise made accusations to the police concerning the behaviour of the Applicant. Investigations have ensued. The full extent of these complaints and the full details of the results therefrom are not before me but so far as there are exhibits concerning these matters they indicate:
(A) Allegation of assault in or about 2018 by the Respondent against the Applicant resulting in a conviction;
(B) Allegation of assault in or about February 2023 by the Respondent (and another person) against the Applicant. This resulted in a conviction but is under appeal.
(C) Allegation of theft from the Applicant by the Respondent. It appears that this has not resulted in a conviction. I am unclear if there has been an appeal.
(xii) It would appear to be common case that the Applicant attended an addiction programme. It is disputed whether this was voluntarily embarked upon or court ordered. It is further my understanding that the Respondent has attended for therapy in the context of domestic violence. This is not contested.
3. It is common case that the extant access order of the 27th October 2023 has not been complied with. The Respondent avers that the child will not attend. It should, however, be noted that the Respondent also informed me at the hearing herein that the date of removal to Ireland was the 19th July 2023, long prior to this Order being made. The October 2023 Order was made by the Polish courts following both parties having had an opportunity to be heard. The Respondent's application for cessation of access was not acceded to. The Applicant's access was reduced and curtailed on this occasion. The regularity of the access provided for in this Order and previous Orders would be impossible to achieve with the child residing at such a distance in another country.
4. This application was heard on affidavit evidence only. The following Affidavits were sworn in this matter:
· Affidavit of MT 15th May 2024
· Affidavit of RL 10th September 2024 (this per the index - copy unsworn)
· Affidavit of MT 18th October 2024
· Affidavit of RL (unsworn copy provided to the Court. Sworn but date of swearing unknown)
· Replying Affidavit of MT 16th December 2024
5. Clearly, facts in contention between the parties cannot be determined in the context of affidavit evidence based solely upon their respective averments. As Hogan J. stated in KW v. PW [2016] IECA 364:
"24. It is, perhaps, important to stress that the hearing before the High Court was entirely on affidavit. This was not a case where, for example, the judge heard the parties giving oral evidence and where she made specific findings of fact based on that viva voce evidence. In these circumstances, namely, the absence of oral evidence and cross-examination it was not open to the trial judge to make a factual determination between conflicting accounts contained in the affidavits of the parties which themselves were not based on either undisputed facts or otherwise objectively verifiable evidence. As Hardiman J. stated in Boliden Tara Mines Ltd. v. Cosgrove [2010] IESC 62:
"It cannot be too strongly emphasised that, where evidence is presented on affidavit, a party who wishes to contradict such evidence must serve a notice of intention to cross-examine. In a case tried on affidavit, it is not otherwise possible to choose between two conflicting versions of facts which may have been deposed to. In a case where there is no contradictory evidence an attack on the evidence which is before the Court must include cross-examination unless the contradicting party is prepared to rely wholly on a submission that the plaintiff has not made out its case, even taking the evidence it has produced at its height."
25. So far as findings based entirely on affidavit evidence is concerned, as Charleton J. explained in Ryanair Ltd. v. Biligfluege de GmbH [2015] IESC 11:
"The first task of the trial judge is to isolate the questions of fact that are essential to the decision and to identify such portions of the evidence as support one side or the other. Once that is clear, a trial judge will be aware that he or she is entitled to regard exhibits as part of the factual material. Where correspondence contradicts averments of fact, this should be taken into consideration; where bald a legations are unsupported, that may be important; where exhibits demonstrate that what a witness deposes to is unlikely, that can be significant; where a test result is confirmed by an analytic printout, it can be hard to gainsay; and where a fact is demonstrated through an unbroken chain of circumstances, mere argument will have to give way. What these considerations demonstrate is that sorting out the facts that can be relied on in the context of written material is an evaluative exercise. Such an analysis is one of finding where the probable balance of truth lies. As such, it should be treated with appropriate deference by an appellate court. Thus, an appellant arguing for the reversal of any judgment founded on a rigorous analysis of affidavit evidence as to fact bears a heavy burden in seeking to demonstrate that a trial judge has fallen into such error that the decision made is untenable."
26. Accordingly, in a case such as the present one, where there was such a conflict on the affidavits on a key question such as the existence of a settled intention to leave Australia and where no oral evidence had been given, the task of the court was to examine the affidavit evidence and to draw such inferences from the undisputed facts and the objective evidence as might be thought appropriate and fair."
6. In the present case, no application for leave to cross-examine was made by either party. I did, of course, have the benefit of exhibits many of which demonstrate objectively ascertained facts (for example, court orders). However, many of the exhibits relate matters which are very much in contention. In this regard, I refer in particular to transcripts of evidence given in the Polish courts, to statements of interested third parties (including the Respondent's partner and the lawyers acting for the parties in Poland) and to reports prepared by third parties (including the report of a private investigator exhibited in the first Affidavit of the Respondent). Clearly, it is impossible for me to determine the veracity of such evidential accounts in circumstances in which only portions of the evidence were before me, where the witnesses concerned were not heard by me and where I can, for the most part, have no knowledge of the conclusions made by the Polish courts in relation to this evidence which was adduced before it. These exhibits do, of course, demonstrate that the asserted evidence was tendered to the Polish courts and the identity of the witness who so testified. Likewise, the unproven and untested statements and reports of interested third parties can be of little persuasive value.
7. I can and, of course, must have regard to the Orders made by the Polish courts in relation to the child the subject of the within proceedings and in relation to issues as between the parties and these are many. There are also extant proceedings before the Polish courts including for permission to relocate which, regrettably, remain outstanding notwithstanding that the applications concerned are of some antiquity. There was no satisfactory response to the reasons for these delays. I have to comment that many previous applications to the Polish courts in this case seem to have progressed promptly. I formed the view from the submissions made herein and from the Affidavits filed that the delay is, most likely, due in large part to the strategic inactions of one or other, perhaps both, of the parties. I will consider this also below. However, it is most important to remember in the context of applications such as the present, these are not substantive proceedings for the determination of child arrangements. They are applications to determine jurisdictional issues and where a child should reside while such substantive proceedings are progressed. It is simply a disservice to the children concerned that these types of proceedings not be progressed with extreme diligence in order that new status quos are not established and that litigation or other approaches to resolution be enabled to move forward towards a final, substantive resolution. This case presents a very clear example of the negativity of delay.
8. There were also exhibited herein a number of documents from independent third parties such as school, police and court supervisory personnel. To some extent, these documents provided objective information from which implications might fairly and reasonably be drawn.
9. In addition to the affidavits of the parties and the exhibits thereto, the only other evidence which I received was the report of Ms. Ruth More O'Ferrall ('RMOF'). There was no delay in the making of the Order providing for an assessment in this case. By Order of this Court (Gearty J.) of the 11th June 2024, an assessment was ordered in the usual terms, consistent with the requirements of Article 13 of the Hague Convention on the Civil Aspect of International Child Abduction 1980 ('the Convention'). It was agreed at the hearing that this Order was made pursuant to section 47 of the Family Law Act, 1995 ('the 1995 Act'). This report was received by me into evidence in accordance with section 47(3) of the 1995 Act:
"(3) A copy of a report under subsection (1) shall be given to the parties to the proceedings concerned and (if he or she is not a party to the proceedings) to the person to whom it relates and may be received in evidence in the proceedings."
10. It was of some concern to me that the report of RMOF is dated the 28th November 2024, in excess of six months after the commencement of these proceedings, and came to hand shortly thereafter. Inquiry by me in this regard indicates that the delay was in no part due to the assessor but was based on the desire of the parties that the assessor would have all of the affidavits filed in this case prior to completion of her report and I recognise that the Order commissioning the report states that "the Summons Affidavits and Exhibits herein be released to Ruth More O'Ferrall by the Applicant's Solicitor". It is to be noted that the child was interviewed by the assessor on the 2nd July 2024, almost five months prior to the date of completion of the report. In circumstances in which the Order of this Court of the 11th June 2024 seeks "that the child is given the opportunity to express her views and be heard in the proceedings", it is concerning that such reports are delayed through the exigencies of the finalisation of pleadings and affidavits in the proceedings. It appears to me that this perhaps is a matter which will have to be considered in the context of the assessment orders but I simply highlight this matter in the context of the delay thus occasioned in this instance.
CONTESTED EVIDENCE
Analysis of Affidavits and exhibits thereto:
11. It would appear that the relationship between the parties was turbulent, involving a number of separations and reconciliations, and also involved numerous court applications. It is common case that the relationship eventually and finally broke down in or about March 2022. In this context, it is important to note that a consent agreement in relation to access with their child was agreed in June 2022 which provided for overnight, weekend and holiday contact with the Applicant herein. These terms included that the Applicant was to be "completely sober" and the Respondent was "not to obstruct the contacts". This agreement would appear to have been done with both parties having the benefit of legal advice.
12. The Applicant avers that the first disruption of this arrangement occurred in or about August 2022 in the context of the Respondent having embarked upon a new relationship. The Respondent avers that the Applicant's misconduct and alcohol addiction were continuing. There is evidence to support both of these sources of acrimony. The Applicant avers that the Respondent made false allegations to the police against him. This averment seems, at best, to be lacking in transparency and, at worst, to be false in the context of the criminal proceedings which ensued from the actions of the Applicant in January 2023 which proceedings are ongoing. Physical attacks by the Respondent's boyfriend against the Applicant are averred to. It is difficult to reach conclusions concerning this save that it would not appear that any steps were taken by the police authorities in this regard.
13. It is amply clear from the Affidavits and the exhibits thereto that there was historic violence by the Applicant upon the Respondent in respect of which he was convicted. There is evidence of alcohol abuse. There is some evidence of the Applicant undertaking therapy in this regard but, on balance, this would not appear to have been consistent or successful and there would appear to have been relapses. There is evidence of allegation and counter-allegation as between the parties. However, it is clear that, albeit not without difficulty, consistent with a parental relationship of acrimony, contact continued pursuant to consent terms until a major fracturing event occurred in January/February 2023. This event is averred by the Respondent to have involved violent behaviour and drunkenness on the part of the Applicant. There is objective independent evidence to support this, in particular the actions of the police. It is clear that criminal proceedings against the Applicant ensued and are continuing. Protective measures were made in this context. The Respondent makes constant reference to the decision of the police authorities in this regard in February 2023 but not to the variation thereof made by the Polish court on 14th April 2023 - this stated that the order was "not to apply to contacts related to matters regarding the care of the daughter". I must, inter alia, consider whether there has been infringement of this provision by the Applicant such as renders it incapable of addressing the risks presented.
14. The Respondent avers to the child refusing to go with the Applicant. He avers negative interference by the Respondent with his relationship with the child. This is not a dispute which can be resolved by me on the basis of affidavit evidence. Reference is made to an event at the school in or about April 2023 but exhibited correspondence from the school indicates that this was not a typical event from the school authorities previous interactions with the Applicant. In this regard I refer to Exhibit MT13 (Certificate Sr. BO) in the Applicant's Second Affidavit sworn on the 18th October 2023:
"I certify that the father MT, father of NT who attends the [REDACTED] Kindergarten in [REDACTED], picked up his daughter on a scheduled basis, i.e. on Tuesdays and Thursdays at 16:00. The father MT never showed any signs of intoxication and was always neatly dressed. N was happy to see her father and willingly went out with him. (27th April 2023)"
15. The conduct of the Respondent is further challenged by the evidence of the Court appointed supervisor from March 2024 (which is further referenced below) which indicates that the mother did not turn up for court ordered supervised access, rather sending advance messages to the appointed supervisor regarding the child's resistance and also by the evidence of Ms. A, professional probation officer, on the 19th September 2024, exhibited at MT18 of the Applicant's Second Affidavit. Furthermore, I have also had regard to the statement of Sr. BO, head teacher in the kindergarten attended by N, when she was a witness at the court hearing on the 15th February 2024, exhibited at Exhibit MT19 in the Second Affidavit of the Applicant.
16. There are lengthy averments by the Applicant in relation to the events of September/October 2023 and the furtive and secretive behaviour of the Respondent in relation to the child's whereabouts and plans at that time. These averments are supported by contemporaneous communications between the school/kindergarten and the Respondent and also communication with the police from this time, referenced at Paragraph 6 of the First Affidavit of the Applicant and the exhibits thereto at "MT7". I have concluded that the Respondent's behaviour concerning the child was lacking in transparency and extremely furtive at this time seeking to present a certain state of affairs all the while having unilaterally determined to pursue an alternative course of action.
17. The correspondence between the Applicant and the Respondent in September 2023 makes it amply clear that he is not consenting to her leaving Poland. Indeed, she replied to him on the 26th September 2023 (the day before he was served with the Polish relocation proceedings) saying "The case regarding consent to travel is in the court so the court will make a decision, so don't make any problems." It is difficult to envisage clearer words not involving consent to those in the September 2023 correspondence "..., I do not agree to this trip, you know well how close I am to N."
18. It must be stated and I have concluded that many of the communications in the context of the wrongful removal/retention of the child are not consistent with grave risk. In September 2023 email communication the Respondent envisaged frequent access, that the Applicant would be seeing the child "unless the courts prevents you from contacts, and if you stay sober." This is a matter which it is clearly anticipated will be addressed and dealt with by the Polish court. Furthermore, in the relocation application, dated the 11th September 2023, the Respondent states: "If the participant expresses his will to have contacts with the parties' minor daughter, the applicant declares that she will enable the participant to do so. She will be able to travel to Poland at least once a month in order to [enable] contacts between the participant and her daughter. Concurrently, the participant will have the opportunity to contact his daughter via instant messaging or by phone (no roaming within the EU)."
19. Changing the child's place of residence abroad in the context of a complicated conflict between her parents appears to have been viewed by the Respondent as "an opportunity to calm down the minor's circumstances and provide her with optimal conditions in the process of growing up." In addition, there are averments indicating that the Respondent embarked upon a sojourn in Ireland with N in order to see if N liked living in Ireland. She avers "If she had not liked Ireland, I would not be here.", the clear implication being that if N did not like Ireland, the Respondent would have returned to Poland with her. This, again, is not consistent with there being a grave risk existing in Poland. In addition, she avers in her Second Affidavit at paragraph 9: "I have explained that the decision to stay in Ireland depended solely on whether N liked Ireland and therefore out of caution and concern of her interests, she was enrolled in both a school in Ireland and remained registered in a kindergarten in Poland." This is not consistent with grave risk. If the Respondent truly believed there was a grave risk arising, her choices would not be dictated by where N liked to reside. The Respondent avers at paragraph 45 of her first Affidavit that "I don't believe I can be protected in Poland given the extensive contacts that the Applicant has", which averment is inconsistent with the child being in Ireland to see if she liked it here. In addition, but perhaps not directly related, this averment must now be considered in light of allegations of serious allegations of criminality now existing relevant to the current circumstances in the household in which the child is living in Ireland.
20. There is clearly reference also to allegations of misconduct on the part of the Applicant but this is not pleaded by her in the relocation proceedings at a level indicative of grave risk which the domestic authorities in Poland cannot address such as required the Respondent to unilaterally depart with the child. Indeed, it is clear that the Polish court did address these undoubted misconduct matters in the supervised contact order of the 27th October 2023 and also in the context of the protective reliefs in place since April 2023 (appeal from the decision in this regard in February 2023).
21. The events surrounding the supervised access event in February/March 2024 (at which time the child would not appear to have even seen the Applicant) involve some inexplicable behaviour on the part of the Respondent. This seems to involve the Respondent seeking to address with the court appointed supervisor the changing of the child's name and furthermore the Respondent did not turn up at the access which was supervised by court order. It is clear that the Applicant did turn up in accordance with the said order.
22. The averments of the Respondent wherein she complains about the lack of contact by the Applicant with the child seem to me to support the effectiveness of the domestic protective reliefs in place. She avers "He is not restricting (sic) from contacting her, only me. The Applicant has made no effort to contact his daughter since 31st December, 2023 until recently which I suspect is due to advice from his lawyers." There are multiple averments confirming that he has not made contact with her, which means that he is abiding by the restraints currently in place.
23. There is no explanation of why the psychological assessment of the child was not advanced. It would appear that the Polish court directed this on the 19th March 2024. The Respondent's lawyer has provided a note (which the Respondent exhibits) stating that the Polish court ordered the Respondent to bring the minor to Poland for the examination once the date is set. To date (the statement is dated the 27th June 2024), it is stated, such a date has not been scheduled. It is indicated that the average waiting time for an expert examination in family law cases is approximately 12 months. This would indicate that such assessment should commence shortly.
24. It is clear that an allegation against the Respondent regarding the theft of monies from the Applicant was discontinued on the 20th May 2024. The official police/court document concerning this states: "..., while the collected evidence provided a suspicion that RL had committed the offence, which was sufficient under Article 313(1) of the Code of Criminal Procedure to present her with charges, it could not be used to assume a high degree of probably of committing the act required to file an indictment."
25. It is now common case that the Respondent's now partner is on remand in custody in Ireland in connection with drugs charges. The Respondent supports his innocence which is in any event presumed but it would appear that there is now controversy between this person and his employees/associates in relation to a very serious and dangerous crime. This is concerning in terms of the safety of persons close to him and, in particular, in the context of this case, N.
26. The time scales involved in the Polish relocation proceedings are set out by the Respondent's lawyer in her communication of the 27th June 2024 (Exhibited RL9 in the Respondent's First Replying Affidavit) but no efforts appear to be being made to advance this process. This is consistent with endeavouring to establish a new status quo rather than security finality for the child. The Respondent is the Applicant in those proceedings and therefore it is most concerning that she does not seek to wish to timeously progress them. No evidence was adduced in relation to any progress being made in respect of an Order for psychological assessment of N. made in March 2024 despite the relocation application having apparently been before the courts in Poland on (at least) two occasions since that time (September 2024 (per letter from Respondent's lawyer aforementioned) and November 2024 (I was so informed at the hearing herein)).
27. The reactions of the child to access (remote and supervised in person) must be viewed in the light of the professional reports in this case, especially that of RMOF. However, this is not in any way to diminish or excuse the entirely inappropriate interventions from the Applicant during the remote access event of the 19th August 2024 (Exhibits RL7 and 8 in the Second Affidavit of Respondent). The behaviour and comments of the Applicant in this context are all the more concerning having regard to the fact that he was well aware that, pursuant to the Order of this Court of the 30th July 2024, the contacts in question were being recorded. These comments include, inter alia, the following statements:
M: "he beat me up on your mom's orders. The truth, I didn't tell you that because I don't involve children, ike you, your mom, in the lives of adults. Simple"
M: " this child is behaving like .... [inaudible the child is shouting] ... really. For what you did to this child, you'll really pay for it. You're mentally ill. What you did to this child is fit for a hospital."
Ch.: "... and he wanted to kill you and [A] too ..."
M: "She keeps saying the same thing over and over again. How does she know such things? How does she know such things that she shouldn't know? Tell me."
M: ... it's already been reported because it looks the same. N keeps repeating the same thing, keeps repeating the same thing. The child has never witnessed anything, any, incident at all. And even when someone came, it was only to see if you were home and you convinced the child that he came to kill ... that was also explained. You made this child, you hurt this next child, the third one, already. The pattern looks the same. N is set up, intimidated, manipulated, ... she keeps repeating the same thing. After two, three minutes there's a problem with the internet because of you, because someone probably disconnect the cable there and then it's no connection anymore. If you thing you'll get away with it, R, you're very wrong. It's all been reported and everything is shown."
It must, however, be recorded that the level of involvement of the child in the conversations at the time of these utterances is unclear. The child was clearly in the vicinity and her upset is recorded but the transcript is entirely unclear as to whether the child was in such a position as to hear these comments of the Applicant.
28. The essence of the Respondent's case is that she is fearful of the Applicant, that he drinks alcohol to excess and is frequently inebriated and that this continues to be the case despite his protestations to the contrary, that the child is in consequence in fear of him, that he is a violent person with violent acquaintances and colleagues and that she has been threatened by him in this context. She denies that access was restricted because the Applicant would not reconcile with her and further denies that she left Poland in consequence of her new relationship.
29. She therefore primarily asserts that the child should not be returned to Poland on the basis of grave risk and on the basis of the child's objections.
30. Numerous other defences were raised by the Respondent also during the hearing and in submissions filed herein. These are:
a. The removal was not wrongful;
b. Settlement, the proceedings having been commenced in excess of 12 months post removal/retention;
c. Absence of rights of custody
d. Lack of exercise of rights of custody;
e. Consent;
f. Acquiescence;
g. Ordering the return of the child would be contrary to her welfare.
31. The Applicant asserts that false accusations have been made against him and that he has been threatened and intimidated by the Respondent and/or her boyfriend, the latter being a person with a criminal record in Poland. He asserts that the child is being influenced by the Respondent and that the assertions of grave risk are false and unwarranted.
32. There is a dispute as to the circumstances in which access ended in February 2023. The Respondent asserts that this was due to the aggression and violence and intoxication of the Applicant. There does, however, remain in place a protective order in the context of domestic violence made against the Applicant in favour of the Respondent by the Polish courts arising from incidents of this nature. This is the Order of the 31st October 2023 referred to above.
33. There is some considerable dispute as to the circumstances in which and the date upon which the child left Poland. The Respondent in her Affidavits and in submission stated that the date was July 2023. However, the overall circumstances are far from clear. The precise date is perhaps not hugely significant to these proceedings (as it is common case that the removal/retention was less than twelve months prior to the institution of proceedings) but there is a relevance in terms of the behaviours of the Respondent and her credibility. The child was attending a pre-/kindergarten school in Poland. The school register indicates that the child missed days in September 2023. The Applicant avers that the Respondent told the school that the child was sick and on holiday. The exhibits indicate that the Respondent ordered the educational supplies needed for the 2023/24 academic year and that her place was kept open in the school and the Respondent led the school to believe that the child was continuing with enrolment for the 2023/24 academic year. It is clear that the child only attended for two days in October 2023. There would appear to have been police involvement (instigated by the Applicant) in or about September 2023. All of these communications are consistent in so far as the Respondent was indicating that she would return to Poland and that her stay with the child outside Ireland was temporary only. These communications are at odds with her repeated assertion on affidavit and at hearing that she relocated the child to Ireland on the 19th July 2023 and that the time in the school in October 2023 was for the purposes only of saying goodbye to friends. It seems to me that the Respondent was engaging in a degree of subterfuge in relation to the whereabouts of and her intentions regarding the child's living arrangements at this time, excluding the Applicant (and others including the school authorities and the police) from her true intentions. It would appear clear that, contrary to her assertions to these persons/institutions, the Respondent had enrolled the child in school in Ireland, had arranged accommodation and had taken up employment.
THE ARTICLES 3 AND 12 PROOFS
34. Article 3 states:
"Article 3
The removal or the retention of a child is to be considered wrongful where -
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State."
35. Article 12 states:
"Article 12
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment."
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child." (underlining added)
36. It is important to record that at paragraph 9 of her first replying Affidavit of the 10th September 2024, the Respondent avers:
"9. With regard to para. 6 I accept that the courts in Poland are vested with jurisdiction, and I am and always have engaged in the process in Poland either in person or via my lawyer. The courts in Poland have ordered that a full welfare report be completed in relation to the Child and is presently awaiting commencement." [1]
37. In asserting that there was no wrongful removal, the Respondent at paragraph 11 of her first replying Affidavit states:
"11. I do not accept that the removal of the Child was and is wrongful as alleged or at all. The Child's residence was placed with me by court order. In making my decision to come to Ireland I took into account the Child's wishes and what was in her best interests."
38. She further states at paragraph 21:
".... It is accepted that I was not living in Poland at the time of this order and did not order my return. I accept that I did not comply with the order. I did not comply with the order because the Child does not want to have contact with the Applicant."
39. On the evidence before me, I conclude that the removal of the child to Ireland (on whatever date) or the retention of the child in Ireland was wrongful within the meaning of Article 3 of the Hague Convention. It is simply an impossibility that a school going child living in Ireland could attend for access on a weekly basis in Poland and therefore it is entirely illogical to argue that there was some implicit permission to relocate inherent in the Order of the 27th October 2023 given by the District Court in [REDACTED]. The outcome of the hearing before the Polish court on the 5th February 2025 also runs counter to this contention.
A. Rights of custody
40. I am satisfied on the evidence before me that the Applicant herein has rights of custody in accordance with Polish law and as required by Article 3 of the Hague Convention. In this regard, I rely upon the relevant extract of Polish Family and Guardianship Code exhibited at MT11 (Tab 15) of the Applicant's Verifying Affidavit sworn on the 15th May, 2024 (section 93 "parental authority applies to both parents"). I further rely upon the Order of the District Court in [REDACTED], Poland of the 22nd October 2018 in which, consequent upon an application by the Respondent for the removal of parental authority, the Order states "III discontinue the proceedings to deprive participant MT of his parental authority over minor NT". This Order is exhibited at Exhibit RL5 of the Respondent's First Replying Affidavit. I further accept the submission of the Applicant that it is implicit in the extant applications before the domestic courts in Poland that the Respondent accepted that the Applicant enjoyed such rights of custody and particularly so in the context of the application for permission to relocate the child to Ireland. In addition to the foregoing, I further accept, in accordance with the authorities, that the Polish courts enjoy rights of custody where there are extant proceedings relating to the child before those courts, proceedings in which both parents are participating and, indeed, in which both have invoked the jurisdiction of the Polish courts seeking varying reliefs pertaining to the arrangements for the child. In this regard, I rely upon the decision of the Supreme Court in GT v. KAO [2008] 3 IR 567.
41. I do not accept the Respondent's assertion that the 2018 Order (22nd October 2018 File ref.: III Nsm 474/18) which provides for residence of the child with her was sufficient to remove rights of custody from the Applicant or that it allowed her to move to live with the child wherever she wished outside Poland. I do not accept this submission for two reasons: first, the actions of the Respondent herself in bringing an application for leave to relocate belies such being the position and, secondly, the access orders which have been made by the Polish courts would be incapable of being fulfilled if this was the position. There is a clear inconsistency in this regard. I am supported in this interpretation by the judgment in ZC v. AG (Child Abduction (Poland); grave risk) [2020] IEHC 30:
"5. These proceedings concern the legality of the removal of a young boy ("the child") from Poland. The child's mother brought the child to Ireland on 8 December 2018, and the child has been residing here since that date. The mother had initially argued that the removal was lawful in circumstances where she asserted that she has the right to determine the child's residence as a result of certain orders made by the Polish courts on 5 November 2018. This interpretation of the court orders is disputed by the child's father....
11. In the event, I decided to adjourn the proceedings in circumstances where, if the legal position had been as suggested by the mother, then this would be largely determinative of the question of whether there had been a wrongful removal. The parties undertook to obtain an independent legal opinion from an agreed expert. It took some time for the parties to obtain the independent legal opinion. An affidavit of laws has since been filed on 25 November 2019. The independent legal opinion indicates that the legal position is not as had been suggested on behalf of the mother. I say no more in relation to this matter now, given that the question of whether the removal was unlawful remains to be determined in the proceedings."
42. It is accepted that the child was habitually resident in Poland prior to removal. On the evidence before me, I conclude that the Applicant did have rights of custody at the time of the removal as indeed did the Polish courts (as the issue of the exercise of such rights is referenced in Article 3 and Article 13, I will consider this issue in the context of Article 13 below).
B. Settlement
43. The defence of settlement refers to the portion of Article 12 underlined above. As is clear from it, it requires the expiration of a period of one year between the date of wrongful removal or retention and the date of the commencement of proceedings. This is not the position in this case. While there is an issue of fact as between the parties in relation to the date of wrongful removal or retention, the Respondent at the hearing was very clear and emphatic that she arrived in Ireland on the 19th July 2023. The Applicant has argued that the date of wrongful removal or retention is later (being related to the date when the Polish kindergarten was informed that the child would not be returning to education in Poland being a date in early November 2023). However, the earlier date contended for by the Respondent is less than twelve months prior to the institution of proceedings (being the 2nd May 2024). In consequence, I find that the defence of settlement as provided for in the second paragraph of Article 12 is not engaged. Issues may well arise in relation to the duration that the child has been in Ireland at this point in time and I will consider these subsequently.
44. The issue of settlement does not arise as the date of removal/retention was stated by the Respondent to be a date in July 2023 and, in such circumstances, the within proceedings issued within the 12 month period. The Applicant asserts that the removal/retention date was much later (November 2023). This may be relevant to issues of delay which will be addressed below but, demonstrably, the settlement situation provided for in Article 12 does not arise. While it is understandable that parties to proceedings wish to argue all possible issues of proof and defences arising, it is undoubtedly the case that hearings are unnecessarily prolonged by arguments which simply are not engaged on facts not in dispute.
THE ARTICLE 13 DEFENCES ARISING
"Article 13
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it 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.
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."
A. Exercise of rights of custody
45. This arises in the context of Article 3(b) ("at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention") and Article 13(a) ("(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, ..."). On the evidence before me, much of which is common case, there was ongoing contact between the Applicant father and the child until February 2023 when access broke down for reasons which are disputed between the parties. Thereafter, there was a cessation of contact such that, save for the school event in April 2023, there was no contact until ordered by this Court (Gearty J. 30th July 2024) and this has itself been problematic. It is likewise common case that various proceedings were instituted by the parties subsequent to February 2023 and these include proceedings by the Applicant seeking to enforce access and to increase his contact with the child. The legal principles applicable to the exercise of rights of custody were addressed by the Supreme Court (McGuinness J.)(nem. dis.) in MSH v. LH [2000] 3 IR 390:
"I do not accept that the clear position of the plaintiff in English law can be negatived or nullified by the fact that, due to his imprisonment, he is not at present playing a large part in the physical day to day care of the children. There are many circumstances in which one parent may have a low level input into the day to day physical care of a child. It could not be that that fact alone would deprive that parent of a legally established right of custody."
46. The issue of exercise of rights of custody have also been considered by Boggs CJ in Friedrich v Friedrich 78 F. 3d 1060 (6th Cir 1996), the US Court of Appeal (6th Circuit) where it is stated:
"We therefore hold that, if a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to "exercise" those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child. [FN6] Once it determines that the parent exercised custody rights in any manner, the court should stop--completely avoiding the question whether the parent exercised the custody rights well or badly. These matters go to the merits of the custody dispute and are, therefore, beyond the subject matter jurisdiction of the federal courts. 42 U.S.C. s 11601(b)(4)." (underlining added)
47. This matter was also considered by Ni Raifeartaigh J. in MU v. NR [2017] IEHC 828 where she stated:
"29. The issue of the exercise of custody rights was again discussed by Finlay Geoghegan J. in M.J.T. v C.C. [2014] IEHC 196, in which she said that it was possible to discern from the decisions to which her attention was drawn by counsel that 'firstly, the courts take a very liberal view as to what will constitute the exercise of custody rights, and, secondly, that it does require the demonstration by an applicant/parent that he either did or attempted to maintain contact or a relationship with his child. She referred with approval to In Re H.; Re S. (Minors) Abduction: Custody Rights [1991] 2 A.C. 476, in which Lord Brandon observed at p. 500:-
'In my view article 3(b) must be construed widely as meaning that the custodial parent must be maintaining the stance and attitude of such a parent, rather than narrowly as meaning that he or she must be continuing to exercise day to day care and control.' Finlay Geoghegan J. also referred with approval to the U.S. Court of Appeals decision in Friedrich v. Friedrich 78 F. 3d 1060 (6th Cir. 1996), where Boggs J said:
'Enforcement of the Convention should not to be made dependent on the creation of a common law definition of "exercise". The only acceptable solution, in the absence of a ruling from a court in the country of habitual residence, is to liberally find "exercise" whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.'"
48. On the evidence before me, and in particular having regard to the efforts made by the Applicant through litigation and otherwise to see the child and to maintain contact with her, I am satisfied that the Applicant at all material times attempted to maintain a relationship with the child and in so doing was exercising rights of custody.
B. Consent and Acquiescence
49. There is, quite simply, no evidence that the Applicant herein consented to the removal/retention or that he acquiesced in this regard after it had taken place. Indeed, all of the evidence is that he was actively pursuing contact with the child at all material times, that he was clearly expressing his lack of consent and the absence of such was clear from the replies of the Respondent and there is clear evidence of secrecy and furtiveness connected with the removal/retention. I have detailed the events of September/October 2023 and the communications with the child's Polish school/kindergarten at that time. Far from consenting or acquiescing, the Applicant instituted and pursued proceedings in Poland to enforce contact. Yet again, I must reiterate that while it is understandable that parties to proceedings wish to argue all possible issues of proof and defences arising, it is undoubtedly the case that hearings are unnecessarily prolonged by arguments which simply are not engaged on facts not in dispute.
50. I now turn to what I consider to be the main defences herein being those of grave risk and the objections of the child. Article 12 of the Convention provides for a return "forthwith", but this is subject to the defences in Article 13 of the Convention. Two such defences have been substantially invoked by the mother herein being (a) grave risk and (b) the objections of the child.
"Article 13
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that—
(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it 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. 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." (Underlining added)
51. Grave risk
The Law
52. The law relating to grave risk in Ireland is well established and was clearly stated by Denham J. in the Supreme Court in AS v. PS [1998] 2 IR 244, wherein she stated at page 259: -
"The law on 'grave risk' is based on art.13 of the Hague Convention, as set out earlier in this judgment. It is a rare exception to the requirement under the Convention to return children who have been wrongfully retained in a jurisdiction other than that of their habitual residence. This exception to the requirement to return children to the jurisdiction of their habitual residence should be construed strictly. It is necessary under the Convention that the situation be one of grave risk, an intolerable situation. The Convention is based on the concept that the children's interest is paramount. It is not in the children's best interests to be abducted across state borders. Their interest is best met by the courts of the jurisdiction of their habitual residence determining issues of custody and access."
53. She continued at page 264:
"[...] The strong thread through all the case law is the fundamental concept of the Hague Convention that (except in rare cases) the issues of custody and access should be determined in the jurisdiction of the children's habitual resident. Thus, if children are abducted or retained across state lines they should be returned to their habitual residence. The exception to this fundamental concept carries a heavy burden, the test is a high one. It is not a case of determining where the custody and access should lie, what is the paramount interest of the child in that regard. It is a question of enforcing the Hague Convention which has at its core the paramount interest of the child that it should not be wrongfully removed or retained across state borders."
54. This was a case in which sexual abuse was alleged by the Respondent and involved an application for return to England. The Supreme Court, recognising that "England had a sophisticated family law legal system which can deal with issues of custody, access and child abuse" directed a return of the children subject to undertakings.
55. The defence of grave risk was considered by the UK Supreme Court in 2011 in the oft cited and approved case of In Re: E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758. At paragraphs 32 -35 the test is set out in summary:
"32. First, it is clear that the burden of proof lies with the "person, institution or other body" which opposes the child's return. It is for them to produce evidence to substantiate one of the exceptions. There is nothing to indicate that the standard of proof is other than the ordinary balance of probabilities. But in evaluating the Page 13 evidence the court will of course be mindful of the limitations involved in the summary nature of the Hague Convention process. It will rarely be appropriate to hear oral evidence of the allegations made under article 13b and so neither those allegations nor their rebuttal are usually tested in cross-examination.
33. Second, the risk to the child must be "grave". It is not enough, as it is in other contexts such as asylum, that the risk be "real". It must have reached such a level of seriousness as to be characterised as "grave". Although "grave" characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as "grave" while a higher level of risk might be required for other less serious forms of harm.
34. Third, the words "physical or psychological harm" are not qualified. However, they do gain colour from the alternative "or otherwise" placed "in an intolerable situation" (emphasis supplied). As was said in Re D, at para 52, "'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'". Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. Mr Turner accepts that, if there is such a risk, the source of it is irrelevant: eg, where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child.
35. Fourth, article 13b is looking to the future: the situation as it would be if the child were to be returned forthwith to her home country. As has often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested her return, although of course it may be so if that person has the right so to demand. More importantly, the situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home. Mr Turner accepts that if the risk is serious enough to fall within article 13b the court is not only concerned with the child's immediate future, because the need for effective protection may persist."
56. It is also important to reference the decision of Gearty J. in Q v Q [2023] IEHC 183 which recognises that grave risk may arise not only from one particular event or type of behaviour but may be cumulative:
"The accumulated evidence of recent events in the case establishes, in this Court's view, that while the Respondent has not been blameless in the breakdown of the relationship and undoubtedly was wrong to remove the children, the Applicant persistently engages in conduct which is harmful and pervasive in terms of his control of his wife's life and finances, such that he has created an intolerable situation for her, albeit one that does not affect the children in the same way. This finding is made in the knowledge that she herself has not behaved well on many occasions, including in particular exposing the children to information that they should not hear anything about. The Applicant's conduct, however, appears to be different in degree and in frequency. He also appears not to recognise the harm that he causes, whereas she has repeatedly apologised for general and specific failings."
That grave risk may result from cumulative circumstances is also supported by the judgment of Donnelly J. in AA v. RR [2019] IEHC 442.
57. The correct approach to be taken in the application of this defence was set out by the Supreme Court (Fennelly J.) in P.L. v E.C. [2008] IESC 19, [2009] 1 IR 1, a case also involving allegations of sexual abuse, at paragraph 55 of the judgment:
"55. The correct approach to the treatment of this issue is very well established in the case law. It is not the purpose of the Hague Convention that hearings of Convention applications should turn into inquiries as to the best interests of the child. The normal presumption is that issues of that sort which will extend to all aspects of child welfare including custody and access) will be decided by the courts of the country of habitual residence. It is the fundamental objective of the Convention to discourage the abduction of children from the jurisdiction of the courts which have jurisdiction to decide those issues. The courts of the country to which the child has been removed must order the return of the child, unless one of the Convention exceptions is established. A court is not entitled to refuse to make such an order based on the general considerations of the welfare of the child. It is, naturally, implicit in this policy that our courts must place trust in the fairness and justice of the courts of the other country."
The Court continued:
"56. In her judgment in A.S. v P.S. [1998] I.R. 244, Denham J, cited from a judgment of Hale J, as she then was. She said at page 261: "The underlying philosophy of the Convention and the heavy burden required to be proved to meet art. 13(b) was set out in Re HB (Abduction: Children's Objections) [1997] 1 F.L.R. 392. Hale J. held that since the object of the Hague Convention was not to determine where the children's best interests lay, but to ensure that the children were returned to the country of their habitual residence for their future to be decided by the appropriate authorities there, it followed that art. 13(b) carried a heavy burden of satisfying the court that there would indeed be a grave risk of substantial harm if the children were returned."
57. Denham J also cited with approval from the judgment of Wall J in Re. K. (Abduction: Child's Objections) [1995] 1 F.L.R. 977, where the relationship between courts of the two jurisdictions was explained as follows: "The authorities are clear that the burden here is on the mother and that the test is a high one. Grave risk is not, of course, to be equated with consideration of the paramount welfare of the child. The obvious reason for this is that I am not deciding where and with whom these children should live. I am deciding whether or not they should return to the USA under the Convention for their future speedily to be decided in that jurisdiction.
58. In R.K. v J.K. [2000] 2 I.R. 416, Barron cited with approval the following passage from the judgment of the United States Court of Appeals Sixth Circuit in Friedrick v. Friedrick (1996) 78F 3d 1060:
"Although it is not necessary to resolve the present appeal, we believe that a grave risk of harm for the purposes of the Convention can exist in only two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute, e.g. returning the child to a zone of war, famine or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the Court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection."
58. In the present case, it is clear that it is the second situation which is engaged, and I must address whether or not the evidence before me supports (a) that there is a grave risk and (b) whether the English courts may be incapable or unwilling to give the child adequate protection. As Fennelly J. further stated:
"60. The court must apply these principles to the facts of this case. It is indisputable that a risk of sexual abuse is a grave risk. The learned High Court judge has said that there was prima facie evidence of sexual abuse before the Australian court. It is undoubtedly the case that the appellant has made such allegations before the Australian court. However, as the learned judge correctly said, that court has not yet ruled on the allegations. The High Court did not hear any direct evidence on the issue but was informed of the nature of the evidence before the Australian court. I am not sure that it is right to rule on the quality, even at a prima facie level, of the evidence before the court of the other country. It is clear that there was a great deal of oral evidence before the Australian court, but this court has seen none of that. Nonetheless, this court must take note of the fact that such an allegation has been made and that it awaits adjudication before the Australian court. It is also clear that the allegation is strenuously denied. It is not possible to go further.
61. The real issue concerns the position that this court should adopt in relation to the fact that the identical allegations are the subject of proceedings before the Australian court. The appellant submits that she has produced evidence to satisfy the test that the Australian court is unable or unwilling to protect the interests of C." The "real issue" for determination in that case was not unlike that in the present case. Is there a grave risk?"
59. As the Supreme Court stated, it is indisputable that a risk of sexual (or, indeed, physical) abuse is a grave risk. The difficulty is how is this to be determined by a Court in the context of an application such as the present with little opportunity for the testing of evidence. The authorities seem to support an approach which involves a blending of the questions to be determined as set out at (a) and (b) above. As Simons J. stated in D.B v. H.C. [2022] IEHC 627 at paragraph 26:
"..., an appraisal of the availability and effectiveness of protective measures in the country of habitual residence forms an integral part of the overall assessment of a "grave risk" defence. Rather than attempt to reach any findings, even on an interim basis, on the allegations of sexual abuse made against the left-behind parent, the Supreme Court instead considered whether protective measures were in place which would ensure that the child would not be exposed to physical or psychological harm on their return."
60. Simons J. went on to comprehensively consider the authorities as to the approach to be taken in assessing the availability and effectiveness of protective measures and referenced the useful guidance of Finlay Geoghegan J. in I.P. v. T.P [2012] IEHC 31, [2012] 1 IR 666, of Ni Raifeartaigh J. in S.S. v. K.A. [2018] IEHC 795 and of Gearty J. in In the Matter of OA and OB, Minors (Child Abduction: Rights of Custody and Habitual Residence) [2021] IEHC 849.
61. From these decisions, the following principles may be extracted:
· Based on the evidential limitations, the court should not attempt to resolve factual disputes;
· The issue of risk is forward-looking in that it is assessing the future position in the event of a return. Ni Raifeartaigh J. in D.B. v. H.L.C. [2023] IECA 104 states at paragraph 92:
"..., the risk-assessment exercise, ..., involved two distinct phases: first, to assess whether there was a risk of future domestic violence ... and, secondly, to assess whether protective measures in the United Kingdom could adequately mitigate that risk."
· The issue to be addressed is whether, if the allegations are true, there is a grave risk that, if returned, the child would be in an intolerable situation. This has sometimes been stated as an exercise in taking the allegations "at their height" [2] or "assuming the alleged risk of harm at its highest" [3] but the Court of Appeal has confirmed that some degree of interrogation of the allegations is permissible. Collins J. in In the Matter of W and X (Minors) [2021] IECA 132 at paragraph 60 states:
"The approach in In re E involves, in cases where there is a conflict of fact as to the existence and/or extent of a risk of harm to a child if returned to the requesting state, assuming the alleged risk of harm at its highest and then, if that assumed risk meets the threshold of "grave risk" in Article 13(b), going on to consider whether protective measures sufficient to mitigate such (assumed) risk of harm can be identified. That approach was endorsed in this jurisdiction in IP v TP: see paragraphs 41-43. Subsequent authority from England and Wales suggests that In re E does not have the effect of excluding any consideration of the evidence or any evaluative assessment of the credibility or substance of the allegations: see (inter alia) Re C (Children) (Abduction: Article 13(b) [2018] EWCA Civ 2834, [2019] 1 FLR 1045 and UHD v McKay (Abduction: Publicity) [2019] EWHC 1239 (Fam); [2019] 2 FLR 1159."
Ni Raifeartaigh J. in D.B. v H.L.C. [2023] IECA 104 states:
"94. I agree with the submission on behalf of the father that while it is true that there are references in the authorities to taking allegations at their height, this does not preclude some degree of evaluation of different sources of evidence, as mentioned by Collins J. in CT v. PS., notwithstanding that this is a summary procedure conducted (usually) on affidavit evidence.
95. This is not to suggest that the High Court in a child abduction application should seek to sift and parse all the evidence minutely, but rather to suggest that the statements in the authorities about "taking the allegations at their height" does not mean, either, that any and all allegations made by respondents in support of a "grave risk" defence should always be uncritically accepted. For example, if there are obvious inconsistencies between two accounts by the same person, or, conversely, clear corroborative evidence of aspects of an account, that may be taken into consideration by the court. In the present case, an example of the former is the mother's statement to the police on the 11th April 2022 insofar as she did not mention, and indeed expressly denied, that there had been any prior physical assaults upon her. An example of corroboration is, as regards the 'biting' incident, the contemporaneous texts which were strongly corroborative of this having happened.
96. Where the "taking the allegations at their height" approach is most useful, perhaps, is where a court is of the view that, even if the allegations are taken at their height, the protective measures which would be available in the requesting jurisdiction are sufficient to ameliorate the risk below the level of "grave". In such a case, it is not necessary to evaluate whether all the allegations are in fact reliable or true, because it does not affect the outcome.
97. However, this case is one of the more difficult cases where, the issue of whether protective measures would ameliorate any risk sufficiently is squarely in issue. This is by reason of the father's behaviour, as will be discussed below."
62. The authorities, in addressing the issue at (b) above, support a high degree of trust being placed in the courts of the home state to provide protection against risk to the child. This was considered by Donnelly J. in AA v. RR [2019] IEHC 442 at paragraphs 76 - 77:
"Moreover, in my view these are all issues which can and should be resolved in the courts of Canada. The Court is conscious that the ECHR case law requires the Court to bear in mind the best interests of the child. As has been said by the Court of Appeal in C.D.G v J.B. [2018] IECA 323:-
The whole basis of the scheme detailed in the Hague Convention and EU Council Regulation 2201/2003 is to leave substantive decisions on issues of custody and access, and related fact-finding, to the court of the place of the habitual residence of the child, while conferring on the court to which the child has been wrongfully removed a more limited scope for examining the facts and refusing return based on this examination.
[A Provincial] Supreme Court is seized of these matters. Without diminishing the seriousness of the concerns of the respondent, the types of issues that have been raised by her are not such in the context of a return to [a province] in Canada that give rise to a grave risk of the children being placed in an intolerable situation or at risk of physical or psychological harm. They are matters that require resolution by the courts of the place of habitual residence. As the Supreme Court said in PL v EC, the normal presumption is that these types of issues will be decided by those courts. Indeed, as noted by the Supreme Court in that case, it is the fundamental objective of the Hague Convention to discourage the abduction of children from the jurisdiction of the courts which have jurisdiction to decide those issues and the requested court is not entitled to refuse to make such an order based upon the general consideration of the welfare of the child. The issues raised by the respondent are considerations concerning the welfare of the child and must be dealt with in the court of habitual residence." (emphasis added)
63. This is particularly so in the context of fellow member states of the European Union. In R v R [2015] IECA 265, Finlay Geoghegan J. (at paragraph 40) stated:
"This is particularly so where the state of habitual residence is a member of the European Union and Article 11 of Regulation 2201/2003 applies to the return." [4]
Application of Law to Facts
64. This is a case in which a number of allegations are made by the Respondent against the Applicant and therefore this is a case which may properly be described as one in which grave risk is asserted arising from an accumulation of circumstances. These incidents which, cumulatively are submitted to amount to grave risk are recited by the Respondent in her first replying Affidavit of the 10th September 2024 at Paragraph 43 (i) to (xiii). These allegations include:
(a) Breaches of domestic violence orders are asserted (the Decision of the 17th February 2023 is referenced and it is alleged that there were breaches of this "by texting" and "by sending the video to me in October 2023", screenshots of the latter which were exhibited indicate that the video involved the filming of the Respondent's residence in Ireland). It is common case that the video was made by a third party and not the Applicant. At paragraph 28 of the First Replying Affidavit, the Respondent avers in relation to this video "which I perceived as a threat from him given he was not meant to be in direct or indirect contact with me.". It should be recorded that the Decision of the 17th February 2023 had been varied by a Court Order made in April of that year removing the restriction in so far as it related to communication concerning the child. Whether or not this video can be excused by this variation is questionable but the Respondent did not aver to the alteration of the initial Decision;
(b) Violence/threats/intimidation/alcohol and drug abuse/criminality and criminal associates are alleged. An historic criminal conviction in 2018 relating to domestic violence is referenced;
(c) In or about January/February 2023 - threats and intimidation by Applicant and third party. A particularly vile and abusive text of the 15th January 2023 was exhibited –
"Two two whores with a capital K. You fucking bitch, you're going to lose this baby. Because you're just a whore. I want to talk to the child, bitch." (SK 17 of the Respondent's First Replying Affidavit). There is also a text message of the 25th September 2023 "karma will come back" which could potentially be considered threatening;
(d) Evidence of his family members at court hearing 13th June 2023;
(e) Bankruptcy declared 16th June 2024. This, it is submitted, should be construed as financially threatening;
(f) Transcript of WhatsApp call in context of access ordered in these proceedings. Gearty order 30th July 2024. (This is exhibited at SK7 of the Respondent's Second Affidavit sworn in these proceedings);
(g) The Respondent says that she cannot be protected in Poland due to his extensive contacts. Allegations of criminality and of associates in the criminal fraternity are alleged. Verbal threats are alleged.
In assessing these, it is important to have regard to the fact that there is a historic criminal conviction relating to domestic violence. It is also important to have regard to the subsequent reconciliation of the parties thereafter and the continuation of their relationship (not without incident, undoubtedly) until 2022. It must also be taken into account that the parties concluded child arrangement by agreement in 2022 which agreement included overnight and unsupervised contact between the Applicant and the child. The significant deterioration of the relationship at the start of 2023 must be recognised and the evidence adduced by the Respondent in this regard is more compelling and persuasive and objectively sustainable than that of the Applicant. However, protective reliefs and revised contact arrangements were put in place by the Polish authorities in the context of these events.
65. I have concluded that cumulatively these allegations, not only when taken at their height but also having regard to the objective support for the veracity of such allegations from the exhibits in the Affidavits filed herein, do amount to grave risk. The Applicant has in the past been convicted of criminal acts of violence against the Respondent and, albeit expressly to be "unintentional", against the child, criminal charges have been brought against the Applicant concerning serious threats of violence including involving a third party, protective measures have been put in place by the Polish authorities and remain in place threats arising from these events and there is evidence of prolonged alcohol addiction problems which would appear to exacerbate these other behaviours. There is also clear evidence of threatening, intimidatory and aggressive comments and communications in particular in the context of videos, emails, texts and transcripts of access events.
66. Having concluded that the cumulative behaviours of the Applicant amounts to grave risk, I must now consider whether the protections which have been afforded the Respondent by the domestic laws in Poland are sufficient to address these risks. What has been the response of the Polish courts and other authorities to these actions and have these measures been sufficient to address the risks arising? It is clear that the parties have been in a position to avail of ready access to police and court authorities in Poland. It is clear that protective orders have been put in place for the protection of the Respondent and the child and that these orders have been implemented successfully. There has been a court order since March/April 2023 restricting access between the Applicant and the Respondent. There has been a supervised access order in place since October 2023. It is the Respondent and not the Applicant who breached this Order. There are two instances of concern since these protective orders have been in place namely the photographing of the Respondent's property in Ireland in or about October 2023 and the verbally abusive and inappropriate comments during the remote access contact in August 2024. However, on the evidence, I have formed the view that the former event must be seen in the context of the wrongful removal of the child from Poland at that time, the lack of information to the Applicant concerning the child's whereabouts despite his requests in this regard and the inconsistencies in relation to the information being given by the Respondent which was furtive in nature. The latter matters of concern clearly occurred more recently and are demonstrative of considerable frustration on the part of the Applicant. However, there is no evidence that these matters will not be effectively and appropriately addressed by the Polish courts and the currently in place restrictions on contact relate to contact pertaining between the parties and not communications pertaining to the child. It is my view that the substantial success of the protective reliefs in place is clear from the averments of the Respondent where she complains about a lack of contact by the Applicant with her and the child. That the protective orders of the Polish court are working is evident from the averments of the Respondent where she herself avers to an absence of contact on the part of the Applicant. Indeed, there is criticism of him in this regard in circumstances in which this would demonstrate a substantial adherence to and respect for the restrictions placed upon him.
67. I therefore conclude that, notwithstanding the fact that the facts support a conclusion of grave risk, having considered the domestic protections afforded and their effectiveness (the facts in relation to the latter not being significantly in dispute), I find that the defence of grave risk has not been made out in this instance.
D. Objections of the Child
67. It is averred by the Respondent that the child does not wish to have contact with her father and that such objection to access has been manifest in her behaviour when access attempts have been made. Reference is made to the school incident in or about May 2023 and the failure of the supervised access visit in March 2024 and also the lack of success of remote access as ordered by this Court (O'Donnell J.) in the course of the within proceedings. The Applicant asserts negative influence by the Respondent. The wishes of the child and her approach to access and the reasons for this are very obviously matters which will have to be addressed at the substantive hearing in relation to arrangements for her. In furtherance of this, the Polish Court has ordered an assessment by an expert psychologist. I have been informed through the Hague Liaison mechanism that on December 10, 2024, the case file was sent to the Panel of Specialists in Tarnow for examination of the parties and get a psychological opinion in the case.
68. There is no doubt that the child in this case has expressed and continues to express resistance to contact with the Applicant. There is also evidence that this was not always the position (in this regard I refer to exhibits MT13, MT18 and MT19 in the Applicant's Second Affidavit herein, discussed previously in this judgment). Whether the objection relates to seeing the Applicant or return to Poland is a question which, on the evidence before me, I would tend to resolve in favour of the former proposition. The child's objections appear focussed upon the Applicant rather than Poland. The reasons for the objections of the child are a matter of very considerable dispute between the parties with each blaming the behaviours of the other. The applicable test is as set out in CA v CA (orse McC) [2009] IEHC 460 where Finlay Geoghegan J. stated:
"25. Counsel for both parties were in agreement that the proper approach of this Court is what has been termed the three stage approach to a consideration of a child's objections. Potter P. in Re M. (Abduction: Child's Objections) [2007] 2 FLR 72 at p. 87, para. 60 stated: "Where a child's objections are raised by way of defence, there are of course three stages in the courts consideration. The first question to be considered is whether or not the objections to return are made out. The second is whether the age and maturity of the child are such that is appropriate for the court to take account of those objections (unless that is so, the defence cannot be established). Assuming a positive finding in that respect, the court moves to the third question, whether or not it should exercise its discretion in favour of retention or return."
69. I had the assistance of the report of RMOF as ordered by this Court (Gearty J.) on the 11th June 2024 which report has been most helpful and focussed upon the pertinent issues. In this regard, very considerable concerns arise as regards the reliability of the views expressed by the child. The assessor reported:
"..., M's opinions and experiences as she reported to me, which were absolute, lacked nuance, lacked contextual and idiosyncratic detail, were unlikely to have been independently formed in their entirety. Her assertion that her mother had directed her to speak freely did not withstand gentle challenge."
The assessor indicated that it was apparent that the child was confused arising from direction she had received from her mother pertaining to the interview.
70. There is other evidence before me which is of concern also in relation to authenticity of view expressed in particular the evidence of the professional probation officer at Exhibit MT18 in the Second Affidavit of the Applicant sworn herein.
71. Applying the tests above, I accept that the child is expressing objections to seeing her father. She is of an age and maturity at which careful regard would usually have to be afforded to such objections. However, I must be careful to ensure that the objections are those of the child and are not expressed through the influence of others. Having regard to the facts set out above, I have considerable reservations in relation to the independence of the objections expressed and, in such circumstances, I would exercise my discretion in favour of return. I note that the Polish courts have ordered a psychological assessment in the context of the extant relocation application before that court. This will enable a far more detailed and far reaching assessment to be carried out as regards the welfare of the child, encompassing also the voice of the child, than is possible before me.
Discretion
72. In the event that I am incorrect in relation to either of the above defences, it must be further remembered that, if either such defence was determined to be engaged, there would still be a discretion vested in me as to whether or not the child should be returned. This discretion was confirmed in the judgment of Denham J. in Minister for Justice (EM) v. JM [2003] 3 IR 178 where she states:
"..., the effect of article 13 is not automatic. First of all, there has to be the decision as to whether article 13 applies. Then, if it is found that it does apply, the court has a discretion. This was stated clearly by Lord Donaldson of Lymington M.R. in In re: A. (Minors) (Abduction: Acquiescence) [1992] 2 FLR 14 at p. 28 when he stated:
"That said, the convention does itself enter a caveat, which is contained in Article 13. Before I consider whether it applies in this case it is, I think, important to emphasise what is the consequence if it does apply. It is not that the court will refuse to order the return of the child to its country or jurisdiction of habitual residence. It is not that the court will assume a wardship or similar jurisdiction over the child and consider what order should be made as if the child had never been wrongfully removed or retained. The consequence is only that the court is no longer bound to order the return of the child, but has a judicial discretion whether or not to do so, the discretion being exercised in the context of the approach of the convention."
This approach to the Convention has been approved in this jurisdiction, see B.B. v. J.B. [1998] 1 I.R. 299 at p. 312, where I stated:
i. "Article 13 is an exception, which is itself for the benefit of children; their welfare is the paramount consideration. The essence of the exceptions is to give judges discretion. Article 13 is not limited by arts. 3 or 12 . It is an article "notwithstanding" article 12. It is an article enabling the fundamental concepts of the Hague Convention to be achieved through the discretion of the courts or administrative authority where relevant.""
I would exercise this discretion, on the facts of this case, in favour of return.
73. My reasons for so doing are numerous:
(a) There is a significant conflict in the positions adopted by the Respondent. While she asserts grave risk, she also refers to her remaining in Ireland with N being subject to N liking it in Ireland. There is little reference to concerns or risks of a grave nature in the application to relocate initiated by her in Poland. Far from the protections in place not being adequate, in her averments she deposes by way of complaint to a lack of contact from the Applicant. In addition, in her application to relocate and, indeed, in communications with the Applicant, the Respondent repeatedly asserts that access with the Applicant will continue and that she will facilitate such access subject only to his sobriety.
(b) I must have regard to issue in strong contention between the parties relating to the child being negatively influenced towards the Applicant by the Respondent. In this regard, it is common case that the child is strongly resistant to access with her father. However, the independent evidence from the school and social services indicate that the relationship between the child and the Applicant was previously a positive one and the actions of the Applicant were appropriate. In addition, there is evidence in the report of RMOF to support concerns about influence.
(c) The jurisprudence of the European Convention on Human Rights mandates that the within proceedings must be determined and considered always having regard to the backdrop of the welfare of the child. The principles applicable in this regard were discussed by Donnelly J. in AA v RR [2019] IEHC 442 at paragraphs 56 to 62:
"The European Convention on Human Rights - Article 8
56. The application of the Hague Convention must also be considered in the context of Article 8 of the European Convention on Human Rights ("ECHR") which grants everyone the right to respect of his or her private and family life. The Grand Chamber of the European Court of Human Rights ("ECtHR") addressed the issues that arise regarding the Hague Convention and Article 8 of the ECHR in Neulinger v Switzerland [2010] 28 BHRC 706. At para. 137 the ECtHR stated:
"In other words, the concept of the child's best interests in also the underlying principle of The Hague Convention. ... The court takes the view that Article 13 should be interpreted in conformity with the Convention."
57. At para. 138, the ECtHR then stated:
"It follows from Article 8 that a child's return cannot be ordered automatically or mechanically when The Hague Convention is applicable. The child's best interests, from a personal development prospective, will depend on a variety of individual circumstances, in particular, his age and level of maturity, the presence or absence of his parents and his environment and experiences ... For that reason, those best interests must be assessed in each individual case. That task is primarily one for the domestic authorities which often have the benefit of direct contact with the persons concerned."
58. The matter was also considered in the case of Re: E (Children) [2011] UKSC 27. The UK Supreme Court stated:
"The most that can be said, therefore, is that both Mamousseau and Neulinger acknowledged that the guarantees in Article 8 have to be interpreted and applied in the light of both the Hague Convention and the UNCRC; that al are designed with the best interests of the child as a primary consideration; that in every Hague Convention case where the question is raised, the National Court does not order return automatically and mechanically but examines the particular circumstances of the particular child in order to ascertain whether a return wil be in accordance with the Convention; but that is not the same as a ful blown examination of a child's future; and that it is, to say the least, unlikely that if the Hague Convention is properly applied, with whatever outcome, there will be a violation of the Article 8 rights of the child or either of the parents. The violation in Neulinger arose, not from the proper application of The Hague Convention, but from the effects of subsequent delays".
59. In the case of X v Latvia [2014] 1 FLR 1135, the Grand Chamber of the ECtHR examined the question again. At paragraph 107, the ECtHR said:
"In consequence, the Court considers that Article 8 of the Convention imposes on the domestic authorities a particular procedural obligation in this respect: when assessing an application for a child's return, the courts must not only consider arguable a legations of a "grave risk" for the child in the event of return, but must also make a ruling giving specific reasons in the light of the circumstances of the case. Both a refusal to take account of objections to the return capable of fa ling within the scope of Articles 12, 13 and 20 of The Hague Convention and insufficient reasoning in the ruling dismissing such objections would be contrary to the requirements of Article 8 of the Convention and also to the aim and purpose of The Hague Convention. Due consideration of such allegations, demonstrated by reasoning of the domestic courts that is not automatic and stereotyped, but sufficiently detailed in the light of the exceptions set out in The Hague Convention, which must be interpreted strictly (see Maumousseau and Washington, cited above, § 73), is necessary. This will also enable the Court, whose task is not to take the place of the national courts, to carry out the European supervision entrusted to it".
60. In V.R. v C.O'N. the Court of Appeal at para. 13 cited with approval the folowing extract from the judgment of Ní Raifeartaigh J. in the High Court (V.R. -v- C.O'N. [2018] IEHC 316):
"Having regard to the above authorities setting out the general principles, it is clear that in a case where the Article 13 (b) defence is raised, the various policies underlying Article 13 (b) of The Hague Convention may be to a degree in conflict with each other. The threshold for establishing grave risk of an intolerable situation for the child is a high one, but the Court must factor in to an appropriate degree the best interests of the particular child. The decision as to the appropriate balance between the various interests and policies is a nuanced and delicate one which will depend upon the particular facts of each case".
61. In the view of this Court, that is the approach that this Court must take to the assessment of grave risk and the best interests of the children. The Court is alive to the necessity to maintain the appropriate balance between the various interest and policies that must be applied to this case.
62. The Court is satisfied that the test is whether there is a grave risk that the return would expose the children to physical or psychological harm or otherwise place the child in an intolerable situation. The focus must be on the children. Where there is a grave risk however, that the return will place the abducting parent in a specific situation that will result in the child being place in an intolerable situation, the Court is not under an obligation to return the child. The category of circumstances in which this would arise, include violence and abuse towards the abducting parent, physical and psychological harm to the abducting parent and, as will be seen below, financial hardship. The Court must be forward looking and assess the risk of what may happen on return."
74. Issues such as those referenced in (b) above cause concerns about the welfare of the child to be engaged. In addition, issues relating to the welfare of the child are also engaged in the context of the concerning circumstances which now pertain relating to the living arrangements of N in Ireland where the partner of the Respondent is clearly immersed in matters of serious criminality. Whether such matters involve the Respondent's partner or are the actions of third parties which are being visited upon him (as the Respondent has submitted), these give rise to most serious concerns relating to the welfare of N in Ireland.
Undertakings and Stays on Orders
75. As previously stated, it is demonstrably clear from the authorities that the best interests of the child must be part of the court's calibration in determining the circumstances of return. In this context, the duration of the child's stay in Ireland must be borne in mind. The relevance of delay has been addressed by Gearty J. in MCA v. GOP [2025] IEHC 99. While some of this may be attributed to the Applicant and the instigation of the return process which did not occur until February 2024, having regard to the proceedings instituted by the Respondent in September 2023 and her subsequent interactions with the child's school/kindergarten, I do not believe that blame in terms of delay can be attributed to him between the summer of 2023 and November of that year. It is amply clear that a vast bulk of the delay in this case was post-proceedings with proceedings instituted in May 2024 not being heard until January 2025. I must note that there were four different dates for hearing assigned to this case, three of which had to be vacated. On balance, I am of the view that the bulk of responsibility for these delays rests with the Respondent. While she deposes to the contrary and seeks to attribute the blame for delay upon the Applicant, my analysis of the conduct of these proceedings and of the proceedings instituted by her in Poland in September 2023 demonstrate most concerning delays on the part of the Respondent in the desirable progression of the proceedings. In the Polish proceedings she was the applicant for relief. In the within proceedings, it appears to me that the bulk of the responsibility for delay rests with the Respondent, she having entered an appearance on the 11th June 2024 and not having filed her First Replying Affidavit until three months thereafter. A further delay of almost two months was caused by her discharge of her legal representatives on the day of the hearing in December 2024, this being the third time a hearing date had been assigned to the matter.
76. I conclude on the facts of this case that the welfare of the child and the delays which have occurred may be adequately and appropriately addressed in the context of undertakings and an appropriate stay on the order for return.
77. The availability and legal basis for undertakings being sought from an Applicant in the context of a return are discussed at length by Corrigan [5] at Chapter 11. At paragraph 11-03, the author recites the Irish authority for seeking such undertakings which are now well established in our child abduction law:
"The Supreme Court in P v. B (Child abduction: Undertakings) [1994] 3 IR 507 provided a reasoned and reasonable jurisdictional basis for undertakings, at least in the Irish context. Denham J. writing for the Court stated:
Undertakings in this situation are compatible with the Act and international law which have as their objectives the desire to protect children internationally from the harmful effects of their wrongful removal from the country of their habitual residence and the establishment of procedures to ensure their prompt return to the state of their habitual residence, as well as to secure protection for rights of access.
Furthermore, undertakings which are for the welfare of the child are in accord with the constitutional protection of the child and its welfare.
Undertakings may also protect a parent in their role and in the exercise of their rights under the Constitution. Consequently I am satisfied that undertakings may be accepted in cases under the 1991 Act."
78. The issue of stays on return orders have also been considered by the Irish courts. In the judgment of Finlay Geoghegan J. in A v A (otherwise McC [2009] IEHC 460 she states:
"42. In an application under the Convention where the Court makes an order pursuant to Article 12 of the Convention for the return of child, it appears that the Court has a limited jurisdiction to place a stay on that order. It is done sometimes for a short period to facilitate undertakings or arrangements being put in place to secure an orderly and safe return of the child. However, the Convention requires the prompt return of the child.
43. In a case where an Article 13 defence based on the child's objections has been made out, such that the Court is given a discretion as to whether or not to make an order for return, it appears to me not to be contrary to the Convention for the Court, having regard to the child's objections and the overall facts of the case, to exercise a discretion to place a longer stay on an order for return where there are either already in being or intended to be proceedings before the Courts of habitual residence of the child seeking the approval of that Court to relocate the child. It is in the interests of the child that the number of moves between jurisdictions be minimised. Such a stay will, of course, depend on individual facts and must, of course, be limited in time and be subject to conditions that the relevant parent pursues an application expeditiously (in this instance, before the English Courts), and gives undertakings to cooperate and, if necessary, bring the child to the jurisdiction of habitual residence if required for the purpose of the proceedings."
79. At the hearing of this matter and in the context of the submissions of the parties, I was not addressed in relation to the issue of appropriate undertakings in the event of a return order or as to the timing of such return in the context of the welfare of N. Absent such submissions, it would be inappropriate for me to address this issue. I will therefore list this matter for such submissions at an early date and in any event no longer than 14 days from the date of this judgment in order that submissions in this regard may be made to me.
80. I therefore direct that the child, N, be returned to the place of her habitual residence but that this will require appropriate undertakings and furthermore that the timing of such return must also be considered in the context of the child's welfare and, in particular, in the context of the delays which have resulted in her having spent a considerable period of time living in Ireland. I will hear from the parties in relation to appropriate undertakings and orders in this regard.
Chronology
· Polish Central Authority Application, made on the 7th February 2024
· Central Authority Application transmitted to Irish Central Authority on the 28th March 2024
· Special Summons, dated 2nd May 2024 returnable for the 29th May 2024
· Affidavit of M. T. notarised on the 15th May 2024
· Affidavit of Service of James P. Ward sworn on the 27th May 2024
· Order of the High Court of Ireland (Gearty J.), dated 29th May 2024
o Normal Orders
· Order of the High Court of Ireland (Gearty J.), dated 11th June 2024
o Order for RMOF assessment
· Entry of Appearance dated 19th June 2024
· RMOF Interview with N on the 2nd July 2024
· Order of the High Court of Ireland (Gearty J.), dated 30th July 2024
o Interim Access Order - Monday and Friday 30-minute Whatsapp video calls at 6pm
· Order of the High Court of Ireland (Gearty J.), dated 31st July 2024
o Directions for submission to be filed 6th September 2024 and RMOF report to be produced 2nd September 2024
· Order of the High Court of Ireland (Gearty J.), dated 3rd September 2024
o Variation of Order of 29th May 2024, Respondent can bring child to Poland for assessment purposes
o Replying Affidavit of Applicant to be filed 20th September 2024
o Replying Affidavit of Respondent to be filed by 8th October 2024
o Submissions to be filed by 21st October 2024
o Date Fixed for Hearing for 23rd of October 2024
· Date for Hearing, 10th September 2024 - Vacated on 3rd September 2024
· Affidavit of R. L. , sworn on the 10th of September 2024
· Affidavit of M. T., notarised on the 18th October 2024
· Order of the High Court of Ireland (O'Donnell J.), dated 22nd of October 2024
o Hearing on the 23rd of October 2024 vacated
o 4th December 2024 hearing date fixed
o Submissions to be delivered by COB 28th November 2024
o Liberty to the Respondent to serve and file an Affidavit by 5th November 2024
· Hearing Date of 23rd October 2024 - Vacated
· Order of the High Court of Ireland (O'Donnell J.), dated 5th of November 2024
o (Order of 29th May 2024 adjusted to allow Respondent to travel with the child to Poland to attend hearing in [REDACTED] on the 26th of November 2024)
· Report of Ruth More-O'Ferrall, received 28th November 2024
· Affidavit of R.L. (unsworn copy provided to the Court. Sworn but date of swearing unknown)
· Replying Affidavit of M.T. 16th December 2024
· Hearing Date 4th December 2024 - No Appearance by Respondent. Liberty to issue motion to come off record sought by solicitors for the Respondent.
· Hearing Date 5th December 2024 - Respondent sought to discharge her lawyers/not to contest motion to come off record and informed court that she sought to instruct alternative legal representatives. New hearing date assigned (24th January 2024)
· Matter listed for mention on the 17th December 2024 for the Respondent to confirm her new legal representatives. No appearance by the Respondent on this date.
· Hearing Date 24th January 2024 - Vacated due to court closure due to weather event and replacement hearing date assigned for next available hearing date
· Hearing Date 27th January 2024
· Hearing Date 28th January 2024
· Hearing Date 29th January 2024
· For Mention 21st February 2025 for parties to address response received through the Hague Liaison mechanism. No appearance by the Respondent.
· For Mention 28th February 2025 for submissions concerning the Hague Liaison response and subsequent matters arising.
[1] At the time of the hearing, this report was still awaiting commencement and, in this regard, with the consent of both parties, I sought clarification of the position in respect of the Polish domestic proceedings (including this report) in the context of the Hague liaison system.
[2] S.S. v. K.A. [2018] IEHC 795; D.B. v. HC. [2022] IEHC 627 at paragraph 31.
[3] In the Matter of W and X (Minors) para. 60
[4] The present case is pursuant to the successor Regulation, Council Regulation (EC) 2019/1111.
[5] Corrigan, C., "The Law of Child Abduction in Ireland", (Clarus Press)(2025)