THE SUPREME COURT
[Appeal No: 2018/115]
O'Donnell J. McKechnie J. MacMenamin J. Dunne J. Finlay Geoghegan J. 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 SIGNED AT THE HAGUE ON THE 25TH DAY OF OCTOBER 1980
AND IN THE MATTER OF COUNCIL REGULATION (EC) NUMBER 2201/2003 OF 27 NOVEMBER 2003
AND IN THE MATTER OF A S AND M M S, CHILDREN
M S
APPLICANT
RESPONDENT
Judgment of Ms. Justice Finlay Geoghegan delivered on the 19 th day of February, 2019.
1. This is an appeal from an order of the Court of Appeal (Irvine J., Hogan J. and Whelan J.) of 2 July 2018, which allowed an appeal from an order of the High Court (McDermott J.) made on 16 February 2018, that the children named in the title be returned to the jurisdiction of the courts of the Republic of Poland. The order of the High Court was made for the reasons set out in a written judgment delivered on 29 January 2018: [2018] IEHC 45. The order of the Court of Appeal was made for the reasons set out in judgment of Whelan J., delivered on 21 June 2018: [2018] IECA 181. In substance, it refused an order for the return of the children.
2. The proceedings are an application brought by the father of the children, to whom I will refer as A and M, pursuant to The Hague Convention on the civil aspects of international child abduction ("the Convention"), as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act 1991 ("the 1991 Act") and Council Regulation (EC) No 2201/2003 of 27 November, 2003 ("the Regulation"), for the return of the children to Poland, as the Member State of their habitual residence. The respondent is the mother of the children.
Background Facts
3. The father and mother are Polish nationals. The father came to Ireland in 2007 and the mother came in 2008. They commenced living together. They did not marry. In April 2010, A was born in Ireland and in February 2013, M was born in Ireland. The parents and children lived together in Ireland until November 2015.
4. In November 2015, unhappy differences arose between the parents. The father decided to return to Poland. With the consent of the mother, he took both children with him to live in Poland in November 2015. There was a dispute in the High Court as to the period of time for which the mother gave consent to this, but that is no longer an issue in the appeal. The mother remained living and working in Ireland after the father and children left.
5. In Poland, the children lived initially with the father and his family and later, with the father and his new partner and her child in an apartment that he leased. A attended school there.
6. The mother visited Poland and the children on three or four occasions in 2016. It appears that during 2016, she sought the father's consent to the children returning with her to Ireland. He refused to give this. Relations between the parents appear to have further deteriorated in late 2016.
7. In September 2016, the father commenced custody proceedings in Poland. On 2 November 2016, the mother commenced proceedings in Poland under the Convention for the return of the children to Ireland.
8. In December 2016, the mother visited Poland and during that visit, with the father's consent, she took the children to stay with her at her mother's home, but did not return them.
9. The mother brought the children to Ireland on 5 January 2017 and informed the father on 6 January that they were in Ireland. Since the children's return to Ireland with the mother, they have lived with her and, for some or all of that period, with a partner of the mother. The children have been at school in Ireland.
10. The mother's application under the Convention in Poland was dismissed at first instance and on appeal. The father's custody proceedings in Poland, the Court was informed, are still extant but this Court has no information about what, if any, progress has been made in those proceedings during the course of this Convention application in the Irish courts. The father came back to work and live in Ireland during the Irish proceedings. However, he was not present at the hearing of the appeal in this Court and the Court was informed by his Counsel that he has returned again to Poland.
The Proceedings to Date
11. The proceedings were issued on 14 August 2017, and grounded, as is current practice, on an affidavit of a solicitor from Smithfield Law Centre, who received instructions from the Irish Central Authority to make the application on behalf of the father. The grounding affidavit discloses that the Law Centre received instructions from the Central Authority on 19 June 2017 by letter, which enclosed documents furnished to the Irish Central Authority by the Polish Central Authority, including a letter from the Ministry of Justice of the Republic of Poland, dated 29 May 2017. The documents included a completed application form by the father containing a request pursuant to The Hague Convention, dated 20 February 2017. I set out those dates as, unfortunately, there has been significant delay in the commencement of these proceedings and to a lesser extent, in its subsequent pursuit, the result of which was that, when the proceedings were heard by the High Court on 15 January 2018, the children had been back in Ireland for just in excess of one year since the date of the alleged wrongful removal in early January 2017. It is not relevant to this appeal to seek to identify what was the cause of the delay, save to observe that it does not appear to have been caused by the mother. However, the fact of the delay meant that the children had been back living in Ireland for approximately 17 months at the date of judgment in the Court of Appeal, and by the date of the hearing of this appeal, just over two years had passed since the date of the wrongful removal.
12. The summons was served on the mother on 18 August 2017. It was returnable for 6 September 2017, and it appears from the order made on that date, the mother appeared before the High Court. It also appears from an affidavit of the mother, sworn in connection with her leave application to this Court and filed on 8 November 2018, that she had, prior to 6 September 2017, made an application for legal aid in connection with these proceedings. She exhibited to this Court a letter from the Newbridge Law Centre dated 6 September 2017, informing her that their head office had refused her application under subss. 28(2)(b) and (d) of the Civil Legal Aid Act 1995 for two reasons; the first was that she did not have, as a matter of law, reasonable grounds for defending the proceedings and that there was then "no evidence to suggest that the Irish courts will not order the return of the child to Poland"; and secondly, that the proceedings were not "the most satisfactory means of achieving the outcome sought" by her, as the Legal Aid Board considered the outcome sought by her was most satisfactorily achieved "by means of proceedings in the Polish courts".
13. The absence of legal representation for the mother before the High Court and the Court of Appeal by a lawyer practising in Ireland and experienced in the complex issues arising in proceedings such as the present, has undoubtedly, contributed to the manner in which the proceedings were heard and determined in the High Court and the Court of Appeal. The mother has had the assistance of a "McKenzie friend", Mr. Ligezowski, a Polish lawyer who is resident in Ireland and speaks English. Both the High Court and the Court of Appeal exceptionally permitted Mr. Ligezowski to address them on the mother's behalf. This was helpful, but such assistance was limited and did not equate to representation by a lawyer practising in Ireland. As appears from the later part of this judgment, the law relating to applications under the Convention, as implemented by the 1991 Act and the Regulation, for the return of children allegedly wrongfully removed from their State of habitual residence, is well established by judgments of the Supreme Court and other courts in this jurisdiction and the United Kingdom. However, it is also a complex area of law, which remains the subject of development and its application to the facts of each individual case requires careful consideration.
14. In this Court, the mother, when leave to appeal was granted, had the benefit of The Supreme Court Legal Assistance/Representation Scheme. Initially, she was represented by a solicitor nominated by the Law Society in accordance with that scheme, and counsel nominated by the Bar Council. The Legal Aid Board helpfully decided that it would take over the solicitor's role and she was represented at the time of the written submissions and the oral hearing by a solicitor from a law centre, senior counsel and junior counsel, all of whom are experienced in so-called ‘child abduction' proceedings.
15. The initial affidavit of the mother was filed in the High Court on 20 September 2017. On 1 November 2017, the High Court (Ní Raifeartaigh J.) made an order pursuant to Article 11(2) of the Regulation, that a Dr. Nolan, a clinical psychologist/psychotherapist, interview the elder child A, in respect of certain matters and report to the Court on the interview, "for the purposes of the Court ensuring that the child is given the opportunity to express his views and be heard in the proceedings". The order was in a form used in the High Court in return applications for many years.
16. The substance of the order made by the High Court on 1 November 2017 is divided into two parts. The first part is an order that A be interviewed by Dr. Nolan for the purpose of the Court ensuring that he is given the opportunity to "express his views and be heard in the proceedings", in relation to eight matters identified in paras. (a) - (h) inclusive. The matters at (c) - (e) and (h) are relevant to the issues on appeal and are set out with Dr. Nolan's response below.
17. The second part of the order required Dr. Nolan to "assess" A and to report to the Court with her professional views on five matters, four of which she responded to in her report to the Court. She did not include any response in relation to the fifth matter, which was to report on any other matter which she considered "should be brought to the attention of the Court arising out of the said interview and assessment for the purpose of its decision in these proceedings".
18. The order also provided that Dr. Nolan be furnished with the summons, affidavits and exhibits. At the time, the only affidavits appear to have been the grounding affidavit of the solicitor for the father and the first affidavit of the mother. The father's first affidavit was filed in December 2017.
19. The interview was conducted through an interpreter on 7 November 2017, and the report to the Court, unusually in my experience, records in substance the order made and simply places answers in respect of each of the sub-paragraphs. Because of the importance of the information made available to the Court I am setting out in full the matters identified and responses made to them at paras. (c), (d), (e) and (h) of the first part of the order and the matters identified and Dr. Nolan's response in relation to her assessment and professional views contained in the second part of the report:-
"(c) His wishes in relation to his future care and living arrangements including where he would like to live;
[A] would like to live in Ireland with his mother, sister and uncle.
(d) If those wishes do not include living in Poland whether he has any objection to returning to live in Poland; and
[A] objects to returning to live in Poland with his father because he alleges his father beats, screams at him and grabbed him.
(e) In the event of any objection to returning to live in Poland being expressed, his reasons for the objections;
[A]'s reasons for his objections to returning to Poland are as follows:
He stated his father screams at him and beats him.
…
(h) Any other information he may wish the Court to take into account in deciding the application that he be returned to Poland.
On 7 November, 2017, through the interpreter [A] expressed his wish to stay in Ireland on four occasions."
20. The matters on which Dr. Nolan was asked to express her professional view, and her responses are recorded in the second part of the report, at paras. 1-4:- 1. The degree of maturity of the said child.
"On 7.11.2017, [A] aged seven years, seven months was able to articulate his thinking and wishes. [A]'s level of maturity appeared to be that of the typical seven year old child."
2. Whether the child is capable of forming his own views and if so a general description of matters about which he appears capable of forming his own views.
"At the meeting of 7.11.2017, [A]'s presentation suggested he was and is capable of forming his own views. He spoke about his life in Poland, his life in Ireland, the sports and activities he likes, and his friends."
3. Whether the child objects to being returned to Poland.
"[A] objects to being returned to Poland saying: ‘I am happy here, I want to stay here because I want to stay here. I have fun here. I like my friends here. I have a playground, I have my Mum, sister, [T] my uncle here. I like living with Mum and [T] and my sister'."
4. If the child does object to being returned to Poland,
(a) The grounds of such objection and in particular whether it relates to an objection to living in Poland and/or a desire to remain in Ireland or whether it relates to an objection to living with or living in the vicinity of a particular parent and/or wish to live with the other parent.
"[A] Objects to living in Poland with father. [A] stated his father ‘shouted' at him and ‘beat' him.
[A]'s objection to returning to Poland was based on his [A]'s experience and recall of life in Poland with his father.
[A] wants to remain in Ireland with his mother, [T] and sister.
[A]'s wish is unambiguous, it is to live in Ireland with his mother, sister and [T] ([T] is his mother's partner).
[A] did not express any wish to live in Poland or to have his father live near him in Ireland."
(b) Whether any objections have been independently formed or result from the influence of any other person including a parent or sibling.
"[A]'s objections to being returned to Poland as clearly articulated by him are/were based on his experience of being a child and in the care of his father in Poland.
At no stage during the meeting did [A] indicate or allude to any influence from his mother or sibling of ‘uncle' [T]
At the meeting of 7.11.2017, [A] did make reference to having ‘good friends in school in Poland, I played with them and visited them at home. I have friends in school in [N]. I have fun here with my friends. I have a playground.'
[A]'s wish is ‘to have a normal house with few rooms and a garden in Ireland with Mum, Uncle [T] and my sister'."
21. Dr Nolan's report was furnished to the Court. Neither party sought to have Dr. Nolan give oral evidence in relation to her interview with A, or in relation to those matters upon which she expressed her professional view. It appears that, again in accordance with current practice, the report itself was not furnished to either party. It was available to the lawyers for the applicant, who will have read the contents to the father. I assume that the contents were also read to the mother and subsequent to the High Court judgment and order, it was made available to her legal representatives in Poland and the Polish courts, and ultimately she appears to have obtained a copy in the course of her appeal to the Court of Appeal. If the mother had had legal representation in the High Court, then those lawyers would also have had Dr. Nolan's report available to them and may have taken further steps such as seeking to have her give oral evidence.
22. The High Court hearing was on the affidavit evidence and the report of Dr. Nolan. It appears to have been accepted at all times that, in accordance with Irish law, the father was not a guardian of the children and did not have custody rights as he was not married to the mother. The mother was the sole guardian and had custody rights. However, it was also accepted that in accordance with Polish law, both parents had rights of custody. The issues in dispute in the High Court between the parties were principally; (1) whether the children were habitually resident in Poland in early January 2017, when the mother brought them to Ireland; (2) whether, in late December 2016, the father had consented to the mother bringing the children to Ireland; and (3) whether the return of the children to Poland to live with their father would amount to a grave risk or place them in an intolerable situation, within the meaning of Article 13 of the Convention. A further issue was identified by the High Court judge in his judgment, by reason of the report from Dr. Nolan of the interview with A and the fact that he had stated to her that he objected to returning to Poland. It must be emphasised that it does not appear that there was any significant focus on A's objection to return by the parties or their representatives as a separate issue in the High Court. The lack of Irish legal representation for the mother may have contributed to this. The children did not have any separate representation.
23. The High Court correctly identified that habitual residence is a question of fact and decided that the children were habitually resident in Poland immediately prior to their removal to Ireland in early January 2017. The Court also decided that the father was exercising custody rights in relation to the children which he held in accordance with Polish law and accordingly, concluded that the removal of the children without his consent was a wrongful removal from their country of habitual residence, within the meaning of Article 3 of the Convention. The High Court carefully considered the defence of grave risk pursuant to Article 13(b) of the Convention and concluded that it was not satisfied that the return of the children to Poland "places them at a grave risk or places them in an intolerable situation".
24. The High Court judgment also considered the objection to returning to Poland expressed by the elder child A, in his interview with Dr. Nolan. A was seven years and seven months old at the date of the interview. As appears from her report, Dr. Nolan's professional view was that A had a level of maturity of a typical seven-year-old and that his presentation at the meeting was that he was capable of forming his own views. The High Court judge concluded at para. 63 that "[t]he Court has no reason not to accept that the child's views are those expressed in the report". He had previously indicated that he had considered the objection made by A to return to Poland and to his father's custody, and his preference to remain in Ireland with his mother, and stated at para. 62, "[h]e has attained a degree of maturity at which it is appropriate to take his views into account and I do so". Those are findings of fact made by the High Court.
25. The alleged failure of the High Court judge to consider, separately and distinctly from the defence of grave risk, the position under Article 13 of the Convention by reason of the child's objections formed part of the appeal to the Court of Appeal and the ground most relevant to this appeal.
26. Whelan J. in her judgment, with which the other members of the Court concurred, concluded that the trial judge in his judgment was in error in his approach to Article 13 of the Convention, consequent on his finding that A objected to returning to Poland and was of an age and degree of maturity that it was appropriate to take his views into account. She concluded at para. 64 that the trial judge, in error, believed that before he could exercise his discretion in favour of the children remaining in this jurisdiction, he would have to find that the basis for the objections constituted either a "grave risk" or an "intolerable situation" within the meaning of Article 13(b). She referred to the well-established principle that the defence that a child objects to return under Article 13 is entirely separate from the defence of grave risk and cited Re S (A Minor) (Abduction: Custody Rights) [1993] Fam. 242.
27. The Court of Appeal, having concluded that the trial judge was in error in his approach to the discretion given him under Article 13 of the Convention by reason of his finding that A objected to return and was of an age and degree of maturity where it was appropriate to take his views into account, considered next what the Court of Appeal should do. At para. 75, she stated:-
"75. Whilst it is open to this Court to remit the case to the High Court, in light of Article 13 of The Hague Convention, for a further exercise of discretion by the trial judge, it is noted that the matter proceeded in the High Court on affidavit and no oral evidence was heard. Given the need for expedition and the harmful impact on children of uncertainty arising from litigation delays this Court is in as good a position as was the trial judge to exercise discretion."
28. The Court of Appeal identified one further error in relation to the High Court judge's approach to the consideration of the child's objections under Article 13 of the Convention. Whelan J. considered that the trial judge erred in considering that the decision of the mother to place A in the care of the father in November 2015, and the father's relationship with A in Ireland prior to that date, could be relevant to the weight to be attached to the objections of A to return to Poland and to the care of his father, or otherwise material to the exercise of the court's discretion. That alleged error is disputed by the father and was the subject of a submission to this Court.
29. The judgment of the Court of Appeal considered the existing law in relation to the proper approach by a court to the question of a child's objection to returning to the country of habitual residence and the exercise by the Court of its discretion where the objections are found to exist and the child is of an age and degree of maturity where it is appropriate to take account of his or her views. The judgment also sets out the factors taken into account and the reasons for which the Court of Appeal concluded that, on the facts of the appeal, the discretion should be exercised in favour of refusing to make an order for the return of A to Poland. These are considered later.
30. The decision of the Court of Appeal in relation to the second child, M, who was not interviewed by Dr. Nolan by reason of her age in November 2017, was that to now separate her from her elder brother for the first time in her life and order her return would place her in an intolerable situation with the meaning of Article 13 of the Convention. Hence, the Court also refused to make an order for return in respect of her. That decision, which is consequential on the decision not to return A by reason of his objections, is properly not disputed on behalf of the father and there is no separate appeal against that part of the decision of the Court of Appeal. These two children have lived together all their lives from birth and should be permitted to continue to do so.
31. The mother also appealed the High Court decisions on habitual residence and grave risk to the Court of Appeal. The Court of Appeal upheld those decisions of the High Court and they are no longer in issue in this appeal.
32. The determination of this Court of 11 October 2018 granted leave to the father to appeal the decision of the Court of Appeal on the following issues:-
"(i) Whether the Court of Appeal was correct to approach the case de novo and exercise its own discretion on the materials before the court;
(ii) Whether the information and evidence before the court was sufficient to permit the court to exercise its discretion under Article 13 to refuse to order the return of the children to Poland;
(iii) If so, whether the Court of Appeal was correct to exercise its discretion to refuse to order the return of the children."
33. As already stated, the mother has had the benefit of legal representation since leave was granted. The Court has hence had the assistance of written and oral submissions from counsel on behalf of the father and the mother. There is no new evidence before this Court. The only new fact referred to by counsel is that the father is no longer residing and working in this jurisdiction as he was, as disclosed by his affidavit evidence, at the time of the High Court hearing. Nothing turns on that particular change of fact.
34. The focus of the appeal following the written submissions and in the course of the oral submissions related to the following issues:-
(i) Was the Court of Appeal correct to conclude that the High Court judge had erred in his approach to the consideration of the of A's objections to return to Poland under Article 13 of the Convention?
(ii) If that conclusion was correct, did the Court of Appeal err in not remitting the proceedings to the High Court, with or without directions, rather than considering the issue raised by A's objections on the basis of the evidence before the High Court and exercising its own discretion as to whether or not an order for return should be made?
(iii) If it was permissible for the Court of Appeal to exercise its own discretion on the evidence in the proceedings, was there any error in its approach to the exercise of its discretion or in the decision reached?
35. Prior to considering these issues, it is appropriate to set out the law in relation to the determination of an application for return under the Convention, as implemented by the 1991 Act and in accordance with the Regulation, where the evidence before a court includes an objection by a child to a return to his or her State of habitual residence.
The Law
36. Section 6 of the 1991 Act provides that the Convention is to have the force of law in the State. In accordance with Article 1, the objects of the Convention are:-
37. These objects are given effect to by the succeeding Articles of the Convention. Article 2 imposes an obligation on Contracting States to take "all appropriate measures" to secure the implementation of the objects and to use the "most expeditious procedures available". Article 11 imposes an obligation on judicial and administrative authorities to act expeditiously in proceedings for the return of children. It also gives a right to an applicant or either Central Authority to request a statement of reasons for delay where a judicial authority has not reached a decision within six weeks from the date of commencement of the proceedings.
38. Wrongful removal and retention are defined by Articles 3 and 4 of the Convention. There is no need to consider this in detail in this appeal as, on the findings made by the High Court and upheld by the Court of Appeal, it is no longer in issue that the children were wrongfully removed, within the meaning of Article 3, from Poland to Ireland on or about 5 January 2017. This follows from the decisions that they were habitually resident in Poland in early January 2017, that their father was then exercising rights of custody which he held under Polish law and that he did not consent to their removal to live in Ireland.
39. Article 12 of the Convention imposes a mandatory obligation on a court, where return proceedings are commenced within one year from the date of the wrongful removal, to order the return of a child who has been wrongfully removed from his State of habitual residence. However, Article 13 then provides:-
40. The provisions of Article 13 of the Convention are commonly referred to as "Article 13 defences". Insofar as they may be considered defences, as appears, it provides firstly that a court is not bound to order the return of a child where a person, institution or other body who opposes its return establishes one of the matters referred to in paras. (a) or (b). Those may well be properly characterised as defences insofar as there is an obligation imposed on the person opposing return, normally the respondent to an application, to establish one of the matters referred to therein before a court is no longer bound by the mandatory provisions of Article 12.
41. The provision in relation to a child's objections is expressed in somewhat different terms. As appears, it separately provides that a court "may also refuse to order the return of a child if it finds that the child objects to being returned…" (emphasis added). Whelan J. is correct in stating that it is well established that the jurisdiction of a court to refuse to order the return of a child if it finds that the child objects and has attained an age and degree of maturity at which it is appropriate to take account of its views, is separate and distinct from the defence of grave risk referred to in Article 13(b) of the Convention. The second matter to which I would draw attention is that a court's jurisdiction to refuse to return by reason of a child's objections is established when "the court finds", as distinct to when the party who opposes the return "establishes that", as is the position in relation to the defences identified in Articles 13(a) and (b).
Hearing a Child
42. As Poland and Ireland are both Member States of the EU, Article 11 of the Regulation also applies to the father's application for the return of the children. Article 11(2), which is relevant to the procedures followed in the High Court in this application, provides:-
"2. When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity."
43. Article 11(2) of the Regulation imposes on the Court a mandatory obligation to provide a child with an opportunity to be heard, subject only to the exception where "this appears inappropriate having regard to his age or degree of maturity". This obligation was the subject of consideration by me in the High Court in M.N. v. R.N. (Child Abduction) [2008] IEHC 382, [2009] 1 IR 388. That decision concerned a disputed application pursuant to Article 11(2) to give a six-year-old child an opportunity to be heard by being interviewed by a relevant expert and a report of the interview to the Court admitted as part of the evidence. I concluded that the six-year-old child should be given the opportunity to be heard. The approach set out is cited with apparent approval by Denham C.J. in A.U. v. T.N.U. (Child Abduction) [2011] IESC 39, [2011] 3 IR 683, at 695. As pointed out therein, giving a child an opportunity to be heard is not to be confused with either a determination of what weight should be attached to any views expressed, or a decision as to whether or not to give effect to the child's views when expressed. It is important to stress that the obligation on a court to give a child an opportunity to express their views arises in all return applications between EU Member States where the requested court may be making an order for summary return pursuant to Article 12 of the Convention. Whilst it also applies where Article 13 of the Convention may be applicable, the right of a child to be heard is not dependent on the facts adduced indicating the possibility of an Article 13 defence. As happened in these proceedings, the child's objections may be disclosed to the Court when the child is heard.
Child's Objections
44. In C.A v. C.A (otherwise C. McC. ) [2009] IEHC 460, [2010] 2 IR 162, in the High Court I set out with approval the three stage approach to consideration of a child's objections in a return application, as identified by the English Court of Appeal (Civil Division) in Re M. (Abduction: Child's Objections) [2007] EWCA Civ 260, where, at para. 60, Potter P. stated:-
"60. 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…"
45. It is now in excess of nine years since I delivered the above judgment and in the intervening period, many judgments have considered the question of how a court should approach the assessment of the objections of a child to return on an application under the Convention and the Regulation. I am not aware of any dissent from the view that the three stage approach identified by Potter P. is the correct one. The facts of this appeal suggest a preliminary question for a trial judge in relation to the adequacy of the evidence later discussed. The first two stages identified are primarily questions of fact or inferences from primary facts for decision by a trial judge. It is the third question which most often presents a court with complex and difficult issues.
46. That question was comprehensively considered by this Court in A.U. v. T.N.U., in which the single judgment was delivered by Denham C.J. (Murray, Hardiman, Fennelly and O'Donnell JJ. concurring).
47. That appeal concerned a decision by the High Court (Birmingham J.) to refuse to return two young children to the State of New York by reason of the children's objections to being returned. The two boys were aged eight and seven respectively on the date upon which they were interviewed, pursuant to an order of the High Court made by me on 18 May 2011. That order was to my recollection, in substance, in similar form to the order of the High Court made in these proceedings for the interview of A notwithstanding the fact that Article 11(2) of the Regulation did not apply. The report of Dr. Byrne-Lynch, who interviewed the boys in those proceedings, much of which is set out at para. 14 of the judgment of Denham C.J., is, however, in terms of detail very different to the report in these proceedings.
48. Denham C.J. in her judgment drew upon and cited with approval a number of passages from the speech of Baroness Hale in Re M. (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288. In considering these, it is important to note that Baroness Hale was primarily addressing a submission made that in Convention cases where, on the facts, Article 13 applies, that "the policy of the Convention requires that the discretion be exercised in favour of return in all save the most exceptional cases". She rejected that contention at para. 40, where she stated:-
"40. On the other hand, I have no doubt at all that it is wrong to import any test of exceptionality into the exercise of discretion under The Hague Convention. The circumstances in which return may be refused are themselves exceptions to the general rule. That in itself is sufficient exceptionality. It is neither necessary nor desirable to import an additional gloss into the Convention."
49. Baroness Hale later identified the correct approach to the exercise of discretion in Convention cases from para. 42, where she stated:- "42. In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the contracting states and respect for one another's judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the contracting states.
43. My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare. I would, therefore, respectfully agree with Thorpe LJ in the passage quoted in para 32 above, save for the word "overriding" if it suggests that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not.
44. That, it seems to me, is the furthest one should go in seeking to put a gloss on the simple terms of the Convention. As is clear from the earlier discussion, the Convention was the product of prolonged discussions in which some careful balances were struck and fine distinctions drawn. The underlying purpose is to protect the interests of children by securing the swift return of those who have been wrongfully removed or retained. The Convention itself has defined when a child must be returned and when she need not be. Thereafter the weight to be given to Convention considerations and to the interests of the child will vary enormously. The extent to which it will be appropriate to investigate those welfare considerations will also vary. But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be."
50. She then turned specifically to child's objections at para. 46 and conducted an analysis with which Denham C.J. expressly agreed at para. 28 of her judgment in A.U. v. T.N.U. At paras. 27 and 28, Denham C.J. stated:-"27. A Court in deciding whether a child objects to his return should have regard to the totality of the evidence.
28. The range of considerations may be wide. As was stated in In re M. (Abduction: Rights of custody) [2007] UKHL 55, [2008] 1 AC 1288 at p. 1308:
‘[46] In child objection cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: First, that the child herself objects to being returned and second, that she has attained an age and a degree of maturity at which it is appropriate to take account of her views. These days, especially in light of Article 12 of the United Nations Convention on the Rights of the Child, Courts increasingly consider it appropriate to take account of a child's views. Taking account does not mean that these views are always determinative or even presumptively so. Once the discretion comes into play, the Court may have to consider the nature and strength of the child's objections, the extent to which they are: "authentically her own" or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances.'
I agree with this analysis."
51. Later in her judgment, when applying the principles to the facts in A.U. v. T.N.U., Denham C.J., again drawing on Re M. (Abduction: Rights of Custody), refers at para. 37 to another consideration relevant in this appeal, namely the change in balance between the policy of summary return and the operation of the exception based upon child's objections that may occur over time. There, she stated:-
"37. The balance between the policy of summary return and the operation of the exception may alter with time. In this case the children have been in Ireland for a considerable time. I would endorse the acknowledgment of Baroness Hale in In re M. (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, where she states at p. 1307:- ‘[44] … But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be.'
A court should at all times seek to expedite cases arising under The Hague Convention, but circumstances such as have arisen in this case are the exception."
52. In applying those principles to the facts of A.U. v. T.N.U ., Denham C.J. concluded that the High Court judge, in exercising his discretion in that case, took into account all of the relevant factors identified by her, "including the fundamental policy objectives of the Convention". Accordingly, she was satisfied that there were no grounds to interfere with the exercise of discretion by the trial judge, which she also determined in the circumstances was clearly correct.
53. I would also refer to earlier comments of Denham C.J. at para. 32 of the judgment in A.U. v. T.N.U. , and cited by Whelan J in this case:-
"32. The learned trial judge was entitled to have regard to the children's stability and contentment in determining what policy of the Convention should prevail. The policy of the Convention should be viewed in the context of the totality of the evidence and in the best interests of the children. This policy includes the general principle that the issue of the custody of the children be determined by the country of their habitual residence. However, also included in the Convention's policy is Article 13 wherein it states that the judicial authority may refuse to return a child if it finds that the child objects to being returned and has reached an age and degree of maturity at which it is appropriate to take account of its views."
54. The importance of this paragraph lies with the requirement that the policy of the Convention be viewed in the context of the totality of the evidence and in the best interests of the children and the inclusion of Article 13 as part of the policy of the Convention. It must be acknowledged that in many cases, that may be easier said than done. Whilst Denham C.J. in her judgment in A.U. v. T.N.U. does not make express reference to the judgment of the European Court of Human Rights in Neulinger and Shuruk v. Switzerland (App. No. 41615/07) (2012) 54 EHRR 31, nevertheless the above paragraph indicates to me that the Court was aware of the judgment in Neulinger which had been delivered on 6 July 2010 and had received much comment. The approach of the ECtHR to the consideration of child's best interests in applications for return under the Convention was somewhat modified in X. v Latvia (App No. 27853/09) (2014) 59 EHRR 3. It is not necessary to consider these in any detail in this judgment.
55. It is easier to say what a consideration of a child's best interest does not entail in the course of the exercise of discretion under Article 13, than what it does require. Notwithstanding references in the above extracts from Denham C.J. and Baroness Hale to the welfare of a child, a consideration of the child's best interests under Article 13 does not require a full welfare assessment. Article 19 of the Convention expressly provides that a decision on a return application is not a determination on the merits of any custody dispute. Those are matters for the courts of habitual residence. What it does require has been stated in several different ways. Denham C.J. considered a court may have regard to the "stability and contentment" of the child.
56. I would draw attention to the small but important possible difference between the approaches of Denham C.J. and Baroness Hale in certain of the above passages which may have lead the Court of Appeal into error. As appears, Baroness Hale at para. 43 speaks of the court being "entitled to take into account the various aspects of the Convention policy". Denham C.J., however, at para. 32 states that the "policy of the Convention should be viewed in the context of the totality of the evidence and in the best interests of the children" (emphasis added). Also later at para. 37, she refers to "the balance between the policy of summary return and the operation of the exception" (i.e. those exceptions laid out in Article 13 of the Convention) which may alter with time. Denham C.J. makes clear that a court exercising a discretion under Article 13 is not merely entitled to have regard to the policies of the Convention which favour return but is bound to do so. I respectfully agree that it is an obligation. The words used by Baroness Hale cited above may not be intended to imply that the Court is entitled not to have regard to Convention policies. What she later stated in paras. 44 and 46 of Re M. (Abduction: Rights of Custody ) indicate to me that they are always matters to be taken into account, but that the weight to be given to them will vary.
57. Articles 11(6) - 11(8) of the Regulation may also be relevant in an application such as this from an EU Member State, in considering an exercise of discretion under Article 13 of the Convention where a child's objections are made out. The Regulation did not apply in A.U. v. T.N.U. , as the return was sought to the State of New York. Those provisions require the Irish courts, where it refuses to make a return order pursuant to Article 13 of the Convention, to notify the courts of the Member State of habitual residence. They further make clear that the courts of habitual residence retain jurisdiction to decide upon custody, notwithstanding the refusal to return, and they expressly permit those courts to make an order which includes an order for the return of the child, which is enforceable in accordance with Section 4 of Chapter III of the Regulation and which excludes any contest on the substance of the order for return. Those provisions emphasise and give practical effect to the policy of the Convention that the courts of habitual residence are best placed to determine custody disputes.
Summary of Principles
58. Drawing on the above authorities, and others, at the risk of oversimplification, I would summarise the principles according to which an application for the return of children wrongfully removed should be determined in this jurisdiction. The underlying policies of the Convention are that it is, in general, in the best interests of children that custody disputes be decided by the courts of their habitual residence and that the abduction of children across borders is harmful to them and should be deterred. Those underlying policies are given effect to by both the general policy and objects of the Convention to secure the prompt return of children wrongfully removed and respect for judicial decisions in relation to custody and access within the Contracting States. Those objects in turn are given effect to by the general rule pursuant to Article 12 of the Convention, in respect of the mandatory return of a child wrongfully removed. However, included in the policy of the Convention is that there are a limited number of circumstances in which a requested court is permitted not to return a child wrongfully removed. Those limited circumstances are set out in Articles 13 and 20 of the Convention. Article 20 is not relevant to this appeal.
59. One of the circumstances identified in Article 13 of the Convention is where a court "finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views". A child's objections are separate and distinct from the circumstances identified in paras. (a) and (b) of Article 13, the latter of which relates to grave risk and intolerable situation.
60. Where, as here, the application for return is from a Member State of the EU, the Court is obliged, pursuant to Article 11 of the Regulation, to give a child an opportunity to be heard during the proceedings, "unless this appears inappropriate having regard to his or her age or degree of maturity". Where evidence is put before a trial court that a child objects to return, then the judge should immediately consider whether that evidence is sufficient to enable the court to determine the issue of the child's objections. If not, it should take appropriate steps to enable appropriate evidence be obtained and given to enable the court decide all relevant issues. Such proceedings are not purely inter partes adversary proceedings between the parents. The court owes a duty to the children who are the object of the application to hear the children and potentially to take into account their views subject to age and maturity.
61. The court should then consider the issue of child's objections in accordance with the three stage approach identified by Potter P. in the English Court of Appeal in Re M. (Abduction: Child's Objections) . The first question, as to whether or not objections to return are made out, is a question of fact to be determined by a trial judge on all the evidence adduced. The objection to return must, in general, be to the State of habitual residence and not to living with a particular parent. However, in a limited number of factual situations the two questions may be so inexorably linked as to be incapable of separation. The second question, as to whether the age and maturity of the child are such that it is appropriate for a court to take account of his views, is also a question of fact to be determined by the trial judge. The trial judge should make clear findings of fact in relation to the first two questions and, where feasible, also make findings as to the reasons for and bases for the child's objections.
62. Where a court is satisfied of the first two questions, it should then clearly turn to a consideration of the exercise of the discretion given to it by Article 13 of the Convention. That discretion must be exercised with due regard for the general policies and objectives of the Convention. As stated, these include general policies which favour the prompt return of children for the purpose of the courts of their habitual residence deciding custody disputes, but also include a policy that where a child objects, a court may refuse to return the child.
63. There are no presumptions pertaining to the exercise of discretion under Article 13 of the Convention where a child's objections are made out and he or she is of an age and degree of maturity where it is appropriate to take account of the views. The child's views or objections are not determinative or even presumptively so. The court must exercise its discretion on all the evidence before it, having regard to the particular facts and circumstances of the application and the child in question. The discretion must be exercised in the best interests of the child in the context of the application. The court is not permitted to conduct a full welfare assessment for the purposes of deciding whether an order for return or an order to refuse return is in the best interests of the child. That is made clear by Articles 16 and 19 of the Convention. It is a more limited appraisal of the actual circumstances of the child at the date the court is asked to exercise its discretion, based on all the evidence.
64. The Court should carefully consider the nature of the objections and the reasons therefor, and of course, the age and degree of maturity of the child, when deciding upon the weight to be attached thereto. In general, greater weight may be given to the views of an older child. However, it must be emphasised that care must be taken with such general statements. as each individual application must be assessed having regard to the individual facts and circumstances of the child, the parents and other family circumstances.
65. Overall, a court, in exercising its discretion where child's objections are made out under Article 13 of the Convention, must be careful to weigh in the balance the general policy considerations of the Convention which favour return and the individual circumstances of the child who objects to return, in order to determine what is, in the limited sense used, in the best interests of that child at that moment. The weight to be given to the general policies of the Convention which favour return and to the objections to return which were made and to other relevant circumstances of the child may vary with time. As has been said, the further one is from a prompt return, the less weighty the general Convention policies will be. In exercising its discretion, a court must take care that it has regard to the fact that the jurisdiction to refuse return is an exception to the general policy and provisions of the Convention. The discretion must be exercised with care, and in the best interests of the child, but not so as to undermine the general policy objectives of the Convention, including deterrence of abduction.
66. In applications to which the Regulation applies, regard should be had to Articles 11(6) - (8) and the practical consequences of a refusal to return for the resolution of continuing custody disputes.
Issues on Appeal
67. I now turn to the application of the above principles to the issues which require decision on this appeal. As set out above at paras. 32 and 34, the three issues upon which leave was granted were developed and focused in the course of written and oral submissions. The first issue relating to the nature of the appeal ultimately turned on the question as to whether or not the Court of Appeal was correct in determining that the High Court erred in its approach to the consideration of A's objections to a return to Poland under Article 13 of the Convention.
Error of High Court in approach to Child's Objections?
68. I wish to repeat what I said at the outset, that the High Court was faced with a very difficult situation on this application, where the mother did not have legal representation. That fact was of particular significance in relation to the consideration of the report by Dr. Nolan on her interview with A. That interview was conducted pursuant to the High Court order made on 1 November 2017. At that time, the mother had filed one affidavit in response to the application. She had not given any evidence that A objected to a return to Poland. This application was one in which the issue of child's objections was not raised as a defence by the mother. It arose in the proceedings by reason of the contents of the report of Dr. Nolan.
69. The High Court was correct in determining, in accordance with the second indent of Article 13 of the Convention (and Article 11 of the Regulation), that it should consider and reach a decision in relation to A's objections as reported by Dr. Nolan. As already pointed out, the relevant part of Article 13 is not dependent upon a respondent adducing evidence in support of a particular defence. Article 11(2) of the Regulation required the Court to give A, then aged 7 years and 7 months, an opportunity of expressing his views to the Court. It follows that those views must be considered, and once the Court was satisfied that A had reached an age and degree of maturity where it was appropriate to take the views into account, then obviously the Court had to consider whether or not, on the evidence adduced, it was satisfied that A objected to a return to Poland and if so the further questions identified above.
70. A full reading of the High Court judgment indicates that the judge did find (on the limited evidence available to him) that A objected to being returned to Poland and that he was of an age and degree of maturity that it was appropriate to take into account those views. However, he did not make, as is certainly desirable and probably required, an express finding in accordance with the three stage approach set out above that the court was satisfied of the first two factual questions, such that it had a discretion under Article 13 of the Convention not to return the child, which he was required to exercise in accordance with the principles set out above.
71. Notwithstanding that he made those findings, he did not expressly consider, as was necessary given the nature of the objections, whether the objection voiced by A should properly be considered as an objection to returning to Poland and not just an objection to living with his father rather than his mother. This issue is considered in more detail below in relation to the judgment of the Court of Appeal.
72. However, having found that A did object to a return to Poland and that he was of an age and maturity where it was appropriate to take account of his views, the High Court unfortunately did not consider those objections in accordance with the second indent of Article 13 of the Convention separately and distinctly from the defence of grave risk which had been raised by the mother. The Court of Appeal was, in my view, correct in concluding from the judgment delivered by the High Court judge, and in particular paras. 58-64, that he did not do so. Where a trial judge finds that objections to return are made out and that the child is of an age and maturity to take account of his views, then he should make clear that he is turning to the third stage in order to consider how the discretion given by Article 13 should be exercised. As held by the Court of Appeal. it is well-established that the defence that a child objects to return under Article 13 is entirely separate from the defence of grave risk.
Court of Appeal decision not to remit
73. The second issue in dispute on the appeal to this Court was the decision of the Court of Appeal not to remit the matter to the High Court, but rather determine the issues in dispute before it on the evidence before the High Court, all of which was either on affidavit or in the form of the report furnished to the Court by Dr. Nolan. There was no oral evidence.
74. It is not in dispute that the Court of Appeal, once it held that the trial judge had been in error in his approach to the consideration of A's objections to a return to Poland, had the jurisdictional option, identified by Whelan J. at para. 75 of her judgment, of either remitting the matter to the High Court or considering the issue of A's objections in accordance with law on the evidence before the High Court. What is disputed is that it was permissible for the Court of Appeal to exercise its discretion in favour of the latter approach, by reason of the limited evidence available to the Court in relation to A's objections.
75. Which approach should be taken by an appellate court on a return application under the Convention will depend upon the particular facts and circumstances of each appeal. Both parties correctly agree that the Court of Appeal did have jurisdiction to remit. However, an appellate court does also have jurisdiction to exercise its own discretion where Article 13 applies: see, inter alia, P. v. B. (No. 2) (Child Abduction: Delay) [1999] 4 IR 185 , Minister for Justice (E.M.) v. J.M. [2003] 3 IR 178 and Re M. (Abduction: Rights of Custody ), as referred to above.
76. On the facts of this case, regrettably, the report of the interview by Dr. Nolan with A was extremely limited. Limited evidence in relation to the objections makes a consideration of child's objections; including the making of findings of fact and the exercise of discretion pursuant to Article 13 of the Convention difficult. There are strong arguments in favour of remittal where the evidence is so limited. The purpose of such a remittal will be to enable a court to obtain further evidence. This was a case where, if the mother had been represented in the High Court, there likely would have been an application on her behalf that Dr. Nolan be called to give oral evidence or for a further interview with the child. Even without such an application, it appears to me that the High Court judge should have considered whether Dr. Nolan might be required to come and give oral evidence or possibly have given directions for a second interview, with additional specific matters to be addressed. However, the parties would have to have been be permitted to make submissions on such steps, which is also complicated where one party is and one party is not represented. I also note the father had objected to the first interview. The High Court judge was significantly hampered by the absence of legal representation for the mother and the inequality of the fact that the father had legal representation.
77. However, by the time the Court of Appeal had to take its decision in June 2018, this had not happened. The Court of Appeal had a difficult decision to make. It was undoubtedly faced with only limited evidence in relation to the child's objections, a fact which favoured remittal. The mother still did not have legal representation. However, on the particular facts of the appeal then before it, there were also strong countervailing considerations; approximately 17 months had elapsed since the children had been wrongfully removed to Ireland in January 2017, and this period had to be considered in light of the highly unusual factual context that existed, in which both children had lived in Ireland since birth and had only spent 14 months of their (5 and 8 year old) lives in Poland.
78. I have concluded that the Court of Appeal, on the particular facts of this appeal, was not in error in in exercising its discretion to decide the issues raised by A's stated objections on the evidence before the High Court and not to remit the matter to the High Court. The only purpose of a remittal to the High Court could have been for the purpose of obtaining additional evidence in relation to A's objections which would have meant further delay and may have necessitated a further interview of A, which is unlikely to have been of use or been in his best interests in June 2018. Seventeen months in the lives of an eight year old and a five year old is a very significant period of time, particularly when viewed in the context of the highly unusual fact that they had spent their entire life in Ireland prior to November 2015 and then spent a relatively short period in Poland, albeit sufficient to acquire a habitual residence there. It was, and is, in the interests of the children that these summary proceedings be brought to conclusion as soon as feasible and that any continuing dispute between the parents be decided in custody proceedings in Poland upon the basis of a full welfare assessment. In the context of this case, further evidence in relation to the child's objections was unlikely to be of such assistance as to justify the continued delay and uncertainty that a remittal would have entailed.
79. Such an approach is consistent with the objects of the Convention for prompt return and expedition in the determination of proceedings. Once the decision was taken that, notwithstanding the limited nature of the report of Dr. Nolan, there should not be a remittal for the purpose of obtaining further evidence, the Court of Appeal was as well placed as the High Court to decide all relevant issues.
Consideration of Article 13 by Court of Appeal
80. The judgment of the Court of Appeal in relation to Article 13 of the Convention and child's objections must be considered in the context of the grounds of appeal which were advanced on behalf of the mother before that court, her absence of legal representation and the issues in dispute. The principal legal ground of appeal appears to have been the error of the High Court judge in considering the child's objections only in relation to the defence of grave risk and not on a standalone basis. The decision of the Court of Appeal on this issue has now been upheld. However, it also appears to have been still in dispute before the Court of Appeal as to whether, on the evidence of the report of Dr. Nolan, the court should find that A objected to a return to Poland and was of an age and degree of maturity where it was appropriate for the Court to take into account his views.
81. Whelan J. considered the general principles regarding the defence of child's objections under Article 13 of the Convention, commencing at para. 25 of her judgment. She initially correctly referred to the objection of a child being a separate and distinct ground of defence under Article 13 and identified the factual questions which are the first two stages in accordance with the principles set out above, namely whether the child objects to being returned to the requesting state and the degree of maturity of the child. She also clearly and appropriately identified a distinction between an objection made by a child to return and a preference against returning.
82. Before this Court, neither the approach nor the findings of fact made by the Court of Appeal in relation to the first two stages, that A objected to a return to Poland and was of an age and degree of maturity at which it is appropriate to take account of his views, are in issue. I have noted the careful analysis undertaken by Whelan J. of those issues, which correctly has not been challenged. The focus of the remaining grounds of appeal pursued before this Court was on alleged errors by the Court of Appeal in the exercise of the discretion of the Irish courts pursuant to Article 13 of the Convention, given the findings of fact made in relation to A's objection to a return to Poland.
83. The submissions made on behalf of the father against the discretion exercised by the Court of Appeal were, in summary:-
(i) The Court failed to have proper regard for the general policy of the Convention in favour of return in the exercise of its discretion and gave undue weight to A's objection to return.
(ii) The Court erred in deciding that the fact that the mother placed A in the care of his father in November 2015 was not relevant to the weight to be attached to A's objections or material to the exercise of discretion.
(iii) The Court failed to assess the objections of A as reported by Dr. Nolan in the context of the evidence referred to by the Polish Court in its reasoning for a decision to dismiss the mother's application under the Hague Convention (exhibited in translation at Exhibit G to the affidavit of the father filed on 6 December 2017).
84. In the course of her judgment, Whelan J. refers to the judgments of Denham C.J. in A.U v. T.N.U. and that of Baroness Hale in Re M. (Abduction: Rights of Custody ). She cites a number of passages from those judgments including para. 32 from the judgment of Denham C.J., cited above. Those judgments and certain of the passages cited refer to the general policies of the Convention, including those which favour the return of children. However, I have concluded from a careful reading of the full judgment that it does not disclose that the Court of Appeal took into account and had due regard for the general policies of the Convention which favour return and in particular, the underlying policy that in general, a child's best interests is served by a prompt and summary return such that the courts of habitual residence may decide upon such custody disputes.
85. The judgment sets out what is considered by the Court of Appeal to be the correct approach to the exercise of discretion under Article 13 of the Convention (where child's objections are made out:-
"66.(a) A child's objections are not outcome determinative in and of themselves.
(b) The discretion is at large and there is no requirement of exceptionality or proof that there is a basis for the objection amounting to a grave risk.
(c) The court is entitled to take into account the various aspects of Hague Convention policy, the circumstances which gave the court discretion in the first place, and wider considerations of the child's rights and welfare."
86. I recognise that this may not have been intended as an exhaustive statement of the relevant principles and may also be intended to address the grounds of appeal pursued before the Court of Appeal. Nevertheless, as formulated, it is indicative of the approach taken by the Court of Appeal. Of particular concern is the statement that "the Court is entitled to take into account the various aspect of The Hague Convention policy…" (emphasis added). I recognise that this phrase was used by Baroness Hale at para. 43 of her speech in Re M. (Abduction: Rights of Custody) , but nevertheless, and with respect, as already stated, it is not a correct statement of the law and is not in accordance with the judgment of Denham C.J. in A.U. v. T.N.U. A court is obliged, when exercising a discretion under Article 13, to have regard to the policies of the Convention, including those which favour the prompt and summary return of children to the courts of their habitual residence and the policy indicated by Article 13 itself, which permits a refusal to return in accordance with the principles already set out.
87. Similarly, it does not appear to me to be a correct explanation of the required approach to state that "the discretion is at large" without further explanation. Again, I recognise that such phrase was used in the same para. 43 of the speech of Baroness Hale in Re M (Abduction: Rights of Custody) . but used alone, as here, may give a misleading impression. The discretion of the Court under Article 13 of the Convention may be "at large" in the sense that there are no presumptions as to how the discretion should be exercised, but there are very clear requirements as to the matters to which a court must have regard in exercising its discretion pursuant to Article 13, in accordance with the principles set out earlier in this judgment.
88. I cannot be satisfied that the Court of Appeal has demonstrated by its judgment that it did have due regard to those policies of the Convention which favour the return of a child when reaching its decision that it should, on the particular facts of this appeal, refuse to return the children to Poland. The judgment does not disclose any consideration given to the balance to be struck between those policies which favour return and the best interests of A, having regard to the objections expressed by him, his age and all the other relevant evidence before the court.
89. I am also not satisfied that the consideration given by the Court of Appeal to A's objections to return and the weight to be attached thereto was in accordance with law. This was primarily set out at para. 91 of the judgment:-
"91. The intensity of the child [A's] objections about a return to Poland and into the sole care of his father and the reasons given for those objections were significant factors in the discretionary equation having due regard to Article 13 of The Hague Convention. Further, when considered in the light of Article 12 of the UN Convention on the Rights of the Child together with the Brussels II bis Regulation, they were of such a nature that in this case they weighed very heavily against a return."
90. In accordance with the principles already set out, a court must carefully consider the nature of the objections, the reasons therefor and the age and maturity of the child when deciding upon the weight to be attached thereto. Unfortunately, the Court of Appeal had very limited evidence being only what is stated in the report of Dr. Nolan. I find it difficult to understand how the "intensity" of the child's objections could be gauged from what is stated in the report. However, more importantly, in assessing the weight to be attached to A's objections, no account was taken of the age of A. As has been stated, in general greater weight would be given to the views of an older child and it follows, less weight to the views of a younger child. I wish to emphasise that this is a general statement and there may of course be circumstances in which having regard to all the evidence, great weight may be given to the objections of a younger child. A.U. v. T.N.U. was one such case. It was however, a case where there was significantly greater evidence in relation to the objections expressed than in the present case. For the reasons more fully set out later, the age of A and the evidence in relation to his objections is such that I have concluded that the Court of Appeal was in error in determining that the objections of A were such that they "weighed heavily against a return".
91. The ground of appeal in relation to the failure to consider the mother's placing of the children in the care of the father in November 2015 to go to Poland as material must be considered in the context of exactly what the Court of Appeal said in relation to this issue. Whelan J., in her judgment, was considering a ground of appeal that contended the High Court judge had incorrectly considered that fact as relevant. The High Court judge, at para. 63 of his judgment, did so in a limited way whilst considering the child's views and objection as expressed, but in the context of assessing whether the mother had made out a case that the children were at grave risk or would otherwise be placed in an intolerable situation if returned to Poland.
92. In the Court of Appeal, Whelan J. at para. 35 stated:-
"35. The relationship of the child with the father prior to November 2015, when the parents and children resided together in Ireland, is not material to the exercise required on the part of a trial judge under Article 13 regarding assessment of a child's objections. The trial judge erred in considering that the decision of the mother to place the child in the care of the father in November 2015 or the father's relationship with [A] in Ireland prior to that date could be relevant in regard to the weight to be attached to the objections of [A] or otherwise material to his exercise of discretion."
93. She returned to this issue at para. 72, where she stated:- "72. The conduct of the mother in allowing the children to travel to Poland in the sole care of the father could not be probative of his subsequent conduct, particularly towards [A]. The children had never been in the sole care of their father up until their departure from Ireland in November 2015."
94. The Court of Appeal may be correct in stating that the permission given by the mother for the children to travel to Poland with the father "could not be probative of his subsequent conduct". It is true that what is alleged to have occurred took place after the mother gave her consent to travel. Nevertheless, as is clear from the principles set out above, the assessment of the child's objections, the weight to be attached thereto and the exercise by the Court ultimately of its discretion must be considered on all the evidence before the Court. The fact that the mother, who had lived with the father in Ireland with the children since their births, was willing to consent to the father taking the children to live with him alone (possibly with family support) in Poland was evidence relevant to the exercise of the discretion under Article 13 of the Convention which ought not to have been excluded. It demonstrated trust by the mother in the father at that time. Such trust in November 2015 does not, of course, exclude a possibility that it was misplaced, but that is not for the Irish courts to decide.
95. Similarly, the reasoned judgment of the Polish court, which is exhibited in translation at Exhibit G to the father's affidavit, is relevant evidence which ought to have been taken into account. It may, however, be of limited assistance since it appears at p. 9 of the translated document that it dismissed the father's "request to introduce evidence of an expert psychologist's opinion concerning the preferences of the children, as it did not have any influence on the settling of the case". However, the judgment also referred to the Court having heard A, but all it stated in relation to that was that "[d]uring the hearing of the minor [A], he talked about his relationship with both of his parents". Nevertheless, that judgment should not have been excluded from consideration, when assessing the objections made, or the weight to be attached to same and the exercise of the court's discretion. In circumstances where the expert evidence in relation to the child's objections was very limited indeed, and the issue to be considered was the exercise of the court's discretion in the interests of the child, it was incumbent on the court to have regard to any evidence that was available to it.
96. Accordingly, I have concluded that the Court of Appeal erred in its approach to the exercise of its discretion pursuant to Article 13 of the Convention in relation to A's objections to a return to Poland, such that its judgment cannot be upheld and the appeal is allowed in part.
Decision by this Court
97. This Court is now faced with exactly the same dilemma as the Court of Appeal was in June 2018. It is now February 2019, and over two years have passed since the children were wrongfully removed to Ireland; it has been approximately 18 months since these proceedings were issued and over 16 months since A was interviewed by Dr. Nolan on 7 November 2017 and expressed both his objection to returning to Poland and his preference to continue living in Ireland. Those time periods in this application must be viewed in the highly unusual additional factual circumstances that these two children lived in Ireland since their births in 2010 and 2013, until their departure to Poland in November 2015, such that the great majority of their lives have been spent in Ireland.
98. As I have repeatedly stated in this judgment, the evidence relevant to A's objections is extremely limited and sparse. I have little doubt that if the mother had been legally represented in the High Court, her counsel, upon receipt of Dr. Nolan's report, would immediately have sought either the attendance of Dr. Nolan to give oral evidence or a further interview with A, in order that the Court would have a better and fuller understanding of the objections being made by A to a return to Poland. It might also have been relevant at that time to explore the probable factual situation for A and his sister on a return to Poland. It is also relevant to this Court's exercise of discretion on this issue that the factual findings made, that A objects to returning to Poland and is of an age and degree of maturity where it is appropriate to take account of his views, are now final. The issues relating to those findings were carefully assessed and determined by the Court of Appeal and there is no appeal being pursued before this Court in relation to its decision on those factual findings. Hence, in accordance with Article 34.4.3° of the Constitution, they are final and conclusive.99. It is not in dispute that this Court has jurisdiction either to remit or to make a decision as to how to exercise the discretion which the Irish courts have, pursuant to Article 13 of the Convention, by reason of the final and conclusive factual findings. I have concluded that these proceedings in Ireland must now be brought to an end. Whilst it is not desirable that a court is required to exercise its Article 13 discretion on such limited evidence, nevertheless, the time has come when these proceedings must be finalised and the courts of habitual residence decide on any continuing dispute between the parents in relation to the custody of these children, including the long term living arrangements for the children. As previously set out, regardless of the decision of this Court on the return of the children, the courts of Poland retain jurisdiction under the Regulation to determine custody disputes. If the decision made is against return, then the Polish courts do so pursuant to Articles 11(6) - (8) of the Regulation. If the children are returned to Poland, then they do so pursuant to Articles 8 and 10 of the Regulation. Accordingly, I have concluded that this Court should now exercise the Article 13 discretion which the Irish courts have by reason of the findings made in relation to A's objections to a return to Poland.
100. A at the time of the interview by Dr. Nolan was seven years and seven months old. He was a young child. His objection to returning to Poland was made in a context where he knew that his mother lived in Ireland and his father lived or would be living in Poland if he returned. The objection to return to Poland as reported was because "he alleges his father beats, screams at him and grabbed him". Those allegations were, however, made in a context where shortly before making them, he had expressed a wish in the interview to live in Ireland with his mother, sister and uncle [his mother's partner]. The allegations made against the father have not been examined and should not be examined by the Irish courts. This is one of the significant difficulties for a court assessing and weighing child's objections. I am simply considering the nature of the objections, the reasons given by A for his objection to return and the context in which they were expressed, to consider the weight which should be attached to the objections. The other matters from the interview relevant to the weight to be given to A's objections include Dr. Nolan's professional view that A was capable of forming his own views, had a level of maturity of a typical seven-year-old child and did not "indicate or allude to any influence from his mother or sibling...". Dr. Nolan's view was that his objections to being returned to Poland "as clearly articulated by him are/were based on his experience of being a child and in the care of his father in Poland". Finally, she expressed the view that "[A]'s wish is unambiguous, it is to live in Ireland with his mother, sister and [T]"and that the objection to returning to Poland was "based on his experience and recall of life in Poland with his father".
101. As already stated, in assessing the weight to be given to A's objections, it is appropriate to consider them in the factual context that the mother, who had lived with the father and the children, in A's case for approximately five and a half years, was willing to send her two children in the care of the father alone to Poland in November 2015. The other relevant evidence was that A had been interviewed by the Polish court, which simply recorded that he had spoken of his relationship with both parents. There is, however, no indication as to what he said about such relationship.
102. My conclusion from the report of Dr. Nolan is that A did have, in November 2017, an unambiguously expressed wish to remain living in Ireland. This was a cogent and understandable preference expressed by him, given the lengths of time during his life that he had lived in Ireland and Poland respectively. He also unambiguously objected to being returned to Poland. Whether the objection expressed and allegations made were because he wanted to remain living in Ireland, or whether there is a basis for the allegations made against his father is not an issue capable of being assessed on the evidence before the Court. The mother did not, in her grounding affidavit, make any reference to an objection of A to returning to Poland. This is to her credit and supports the view expressed by Dr. Nolan that the objection expressed by A was his own view and not influenced by the mother. The other factor which must be taken into account is A's age. In relative terms he was, in November 2017, a young child. It is well established that objections expressed by a younger child may carry less weight. My overall conclusion on all the evidence is that limited weight should be attached to the objections to return made by A in November, 2017.
103. The policies of the Convention which favour return need not be repeated. They are policies which in general are in the best interests of children. A was wrongfully removed to Ireland in January 2017. The policy of the Convention is that it is in his best interests that he be promptly returned to Poland in summary proceedings, in order that the Polish courts who are best placed to determine custody disputes between his parents do so and that wrongful removal by one parent is deterred, as it is, in general, harmful. The policy is, however, to be achieved by a prompt return and it is recognised that the balance between the weight to be attached to the policies of the Convention which favour return and the best interests of the individual child may alter with the passage of time since the wrongful removal, as explained in A.U. v. T.N.U. and Re M. (Abduction: Rights of Custody), cited above.
104. The Court must now exercise the discretion in the best interests of A. Those best interests must be ascertained in the context of the nature of these proceedings, the general policies of the Convention and the individual facts pertaining to A, including his expressed objections to return to Poland. For the reasons set out, I have indicated limited weight should be attached to the objections expressed. However, A's best interests must be considered on all relevant facts, which include where he has lived since birth. A lived in Ireland for a period of approximately five and a half years prior to moving to Poland in November 2015; then lived in Poland for approximately fourteen months and since January 2017, has lived in Ireland for a further two years. As a matter of common sense, he must be considered to now have a stable life in Ireland. Those facts are such that I have concluded that, taking into account the Convention policies which favour return, and A's objections and the limited weight to be attached to same, it nevertheless cannot be considered to be in the best interests of A that he now be required to return to Poland by an order made in summary proceedings without a full welfare assessment involving due consideration of what is in his best interests. In reaching that conclusion, I wish to emphasise the importance of the fact that A is a child who had lived in Ireland for approximately five and a half years before he moved to Poland and became habitually resident there, but he only spent approximately 14 months in Poland before returning to Ireland just over two years ago. I would also add that the additional time between the decision made by the Court of Appeal and this Court is not significant. This comment leads to an obvious inference that in my view, the decision reached by the Court of Appeal was the correct decision, but regrettably the approach of the Court to the exercise of discretion as set out in its judgment was not correct, for the reasons already given.
105. I would also emphasise that this is a highly unusual case. Where a court concludes, as I have done, that limited weight should be attached to the objections of a child by reason of his age or the nature of the objections, it is the general policies of the Convention which favour return which would normally prevail. If not, there is a risk that those policies and the objects of the Convention will be undermined. However, the life of A in Ireland before he left for Poland in November 2015 and the relatively short time he lived in Poland has meant that his sense of stability and contentment in Ireland following his wrongful removal back to Ireland is of a different order to the norm, such that it is in his best interests that there should not be a further move until such time as there has been a full welfare assessment conducted to determine where, or with which parent, if they continue to live apart, he should live in the future.
106. The other relevant feature of this case is that it is an application to which the Regulation applies. As stated, the Polish courts retain jurisdiction to determine ongoing custody disputes between the parents, notwithstanding that no order for return of the children is being made. Both parents are Polish nationals with, it would appear, Polish legal representation. The mother, as the parent who wrongfully removed the children to Ireland, is not gaining an advantage in subsequent custody proceedings. It will be a matter for her to fully participate with the Polish proceedings and facilitate participation by the children therein.
107. It follows from the decision to refuse to make an order for the return of A that there should also be an order to refuse the return of his sister M. This consequence is agreed. That order is made pursuant to Article 13(b), for the reasons set out in the judgment of the Court of Appeal.
Conclusions
108. The absence of legal representation for the mother in the High Court and Court of Appeal created particular difficulties for the appropriate hearing and determination of these proceedings in accordance with the expedition required by the Convention and the Regulation and with fair procedures. It also exacerbated the difficulties for the Court in considering the objections of A expressed in his interview with Dr. Nolan, pursuant to the order of the High Court made for the purposes of ensuring that A was given an opportunity to be heard in the proceedings, as is required by Article 11(2) of the Regulation.
109. The Court of Appeal was correct in concluding that the High Court judge did not consider A's objections in accordance with the second indent of Article 13 of the Convention separately and distinctly from the defence of grave risk and that, in failing to do so, he erred in his approach to Article 13 of the Convention.
110. Having determined that the High Court judge was in error, the Court of Appeal had the option of either remitting the application for return to the High Court with or without directions or deciding to determine the application for return on the evidence before the High Court in accordance with law.
111. On the particular facts of this appeal, where all the evidence was on affidavit or in written form (that is, the report of Dr. Nolan to the Court), the only practical purpose of a remittal to the High Court would have been to obtain further evidence in relation to A's objections. On the unusual facts of these proceedings, where the children had lived in Ireland since their births in 2010 and 2013, respectively, until their move to Poland in 2015, and in light of the period of time spent there and the time which had elapsed since the date of wrongful removal in January 2017, the Court of Appeal did not err in determining that it should not remit and should decide the application on the basis of the evidence before the High Court.
112. The Court of Appeal correctly assessed and made findings of fact that A objected to a return to Poland and was of an age and degree of maturity at which it was appropriate to take into account his views. Those decisions of the Court of Appeal are not the subject of an appeal to this Court, and in accordance with Article 34.4.3° of the Constitution, are final and conclusive.
113. The Court of Appeal was however, in error in its approach to the exercise of discretion pursuant to Article 13 of the Convention. The judgment of the Court of Appeal does not demonstrate that it had due regard to the general policies and objects of the Convention which favour return. The consideration given to A's objection to return and the weight to be attached thereto was not in accordance with law. It also, in error, failed to take into account as relevant to the exercise of its discretion, the evidence in relation to the mother permitting the father to take the children to Poland in November 2015 and the reasoned judgment of the first instance court in Poland on the mother's application under the Convention. Accordingly, the judgment of the Court of Appeal in relation to the exercise of discretion pursuant to Article 13 of the Convention cannot be upheld and the appeal is allowed in part.
114. This Court has the option of remitting the proceedings or making a decision on the appropriate exercise of discretion pursuant to Article 13 of the Convention on the findings of fact made by the Court of Appeal in relation to the child's objections and his degree of maturity. For the reasons fully set out in the judgment, the Court has decided that it should not remit the proceedings and should exercise the Article 13 discretion on the evidence before the High Court and Court of Appeal.
115. A consideration of the nature and context of the objections expressed by A in his interview with Dr. Nolan in November 2017 and his then age has led the Court to a conclusion that limited weight should be attached to his objection to return to Poland. Such a conclusion would normally lead to a decision that the general policies of the Convention which favour return should prevail and notwithstanding the objections made, the order for return should be made.
116. In accordance with the general principles set out in the judgment, the discretion of this Court pursuant to Article 13 of the Convention must be exercised on all the relevant evidence before the Court. That evidence includes the fact that A was born in April 2010 in Ireland and lived here until his departure to Poland in mid-November 2015, where he spent 14 months and then returned to Ireland in early January 2017. The Court, taking into account the general policies of the Convention which favour return, the limited weight which it considers should be accorded to the objections expressed by A, and the unusual facts in relation to the periods of time lived in Ireland and Poland respectively, has concluded that it cannot be considered to be in the best interests of A to make an order for return in these summary proceedings. Any decision by a court that A is required to move from Ireland to Poland should only be taken following a full welfare assessment, as will happen in custody proceedings. This is required in his best interests. Hence, the decision of the Court pursuant to Article 13 of the Convention is to refuse an order for the return of A to Poland
117. Article 11 of Regulation 2201/2003 applies to these proceedings. The Polish courts retain jurisdiction to determine any continuing custody disputes between the parents in relation to the children pursuant to Articles 11(6) - (8) of the Regulation.
118. It is not in dispute that if the decision is to refuse an order for the return of A to Poland, it follows that there should also be an order refusing the return of his sister M, with whom he has lived for his entire life, for the reasons set out in the judgment of the Court of Appeal.
Relief
119. The appeal should be allowed in part and so much of the order of the Court of Appeal as dismissed the proceedings be vacated. In lieu thereof, there will be an order pursuant to Article 13 of the Convention that the application for the return of the children to the Republic of Poland be refused for the reasons set out in this judgment. There will also be an order pursuant to Article 11(6) of the Regulation for the transmission of the relevant papers to the courts in Poland and for the release of papers by the parties to their legal representatives in Poland and their use in any future court proceedings in Poland relating to the children, the subject matter of the proceedings.
Additional Observations
120. I wish to make three additional observations in relation to these proceedings. First, the limited nature of the report of the interview by Dr. Nolan with A created difficulties for the consideration by all courts of the child's objections. The current practice in the High Court of meeting the obligations of the Court under Article 11(2) of the Regulation by making an order for relevant children to be interviewed in relation to specific matters and seeking a professional view is a practical way within our procedures of complying with the Article 11 obligation. However, it would appear that Dr. Nolan may not have been fully appraised of what was expected of her. It may be desirable that there are some guidance notes available for a child psychologist or other expert who is asked to conduct interviews and express their professional views to the Court in accordance with such orders. It is important that the views of the child are communicated in the words of the child and where possible with quotations. The purpose is to give the child an opportunity to be heard by the Court. It is also important where objections are voiced by a child that those are gently and carefully explored without leading, so as to give the Court a real understanding of the reasons for and bases of the objections. I would also add that where a court receives a report which, in the court's view may not enable it fully assess and make findings in relation to the expressed objections of the child or permit the Court properly exercise its discretion under Article 13 of the Convention, the Court should immediately, obviously giving the parties an opportunity to be heard, decide whether oral evidence should be sought from the person who conducted the interview or whether a further interview with specific matters to be addressed should be ordered.
121. The second general observation I wish to make relates to the failure of the mother to obtain legal representation in this jurisdiction at the commencement of these proceedings. Hague Convention proceedings are extremely legally complex. They are not proceedings which can normally be appropriately dealt with by a party without legal representation. The applicant always has legal representation provided by the Legal Aid Board. As set out in this judgment, both the administrative and judicial authorities are bound by the Convention, as implemented by the 1991 Act, to act expeditiously in relation to such proceedings. The judges must, of course, also act in accordance with the constitutional principles of fair procedures in these adversarial proceedings. The children are the subject of the proceedings and do not, normally, have separate representation, but the courts have obligations to ensure that they are heard and their rights are respected in the proceedings. The absence of legal representation for a respondent such as the mother in these proceedings undoubtedly both complicates and delays the proceedings and, as occurred here, may also result in one or more appeals. Article 7 of the Convention obliges the central authority in this jurisdiction, namely the Minister for Justice and Equality to take all appropriate measures, inter alia "where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisors". That obligation is imposed for the purpose of securing "the prompt return of children and to achieve the other objects of this Convention". This may require legal representation for respondents to be facilitated. The issues to be decided in such proceedings are usually of fundamental importance to the wellbeing of the children involved and their family life.
122. The legislative provisions in relation to legal aid are of course, a matter for the Oireachtas and possibly the Executive. The Court would simply request that these might be reconsidered in relation to respondents and/or the position of children in return applications under the Convention, in the context of the difficulties identified by this appeal. In my experience, the difficulties presented in these proceedings by the absence of legal aid are not unique in return applications under the Convention. The overall cost may be reduced if an early resolution is achieved, which will normally be assisted by representation of both parties.
123. Third, as appears from the judgment, notwithstanding that the order to refuse to return the children to Poland is upheld, it remains the position that the Polish courts retain jurisdiction to decide on any continuing custody disputes between the father and the mother in accordance with Articles 11(6) - (8) of the Regulation. The Court will now transmit to the court in Poland, before whom the custody proceedings remain pending, the relevant documents, including the transcripts of the hearings and the judgments of the courts in this jurisdiction. The importance to the children of maintaining a relationship with both parents cannot be over-emphasised. If the parents continue to live in two different countries, then very careful arrangements need to be put in place to achieve this. The mother will, I am sure, receive advice as to the importance of her participation in the Polish proceedings and the fact that any order made by the Polish courts may be enforceable in this jurisdiction without review of its substance. Whilst the affidavits disclose differences between the parents, I am sure that each parent seeks to promote what he or she considers to be in the best interests of their children. Undoubtedly, the best interests of their children will be served most appropriately if the parents can agree on future living arrangements for the children which would enable the children to spend time with each parent in their respective countries, secure in the knowledge that they will be entitled to return to the other parent at the end of an agreed holiday or school term. It is to be hoped that the parents, with the assistance of lawyers either in this jurisdiction or in Poland, might be able to achieve such an agreement in the interests of their children.
