Court allows appeal refusing child return to Poland based on child's objection and intolerable situation for sibling.

THE COURT OF APPEAL

Neutral Citation Number: [2018] IECA 181

[2018/72]

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) NO. 2201/2003 OF THE 27TH NOVEMBER 2003

Irvine J.

Hogan J.

Whelan J.

BETWEEN

M.S.

Applicant/

Respondent

AND

A.R.

Respondent/

Appellant

JUDGMENT of Ms. Justice Máire Whelan on the 21st day of June 2018

1. This is an appeal from the judgment and orders made in the High Court on 29th January 2018 directing the summary return of two

minors to Poland pursuant to the Hague Convention 1980.

2. This appeal concerns two young children who will be referred to hereinafter, for the purposes of protecting their anonymity, as Jan

and Lena. Jan was born in April 2010. His sister Lena was born in February 2013. They are now aged 8 years and 2 months and 5

years and 4 months respectively.

3. The respondent is the father and the appellant is the mother of the minors. The father and mother were never married to one

another. The father was born in Poland in 1983. At the age of about 23 he came to Ireland and resided here until mid-November 2015.

The mother was born in Poland in 1990. She came to Ireland at the age of 17 in 2008. She has been resident in this jurisdiction ever

since. The children were born in Ireland. At all material times the parties and children were resident in Ireland until mid-November 2015

when the relationship between the parents broke down.

4. In mid-November 2015 the father, with the knowledge and consent of the mother, took the children to Poland. However, there is a

significant dispute between the parents as to the circumstances surrounding the removal of the children from Ireland and, in

particular, the duration for which it was intended that they would reside in Poland. On the father’s part it is contended that the

departure from Ireland was permanent. The mother contends that the children were to stay in Poland on a temporary basis only. For

the purposes of this appeal it is not necessary to reach any conclusion on this issue.

5. The children resided in Poland under the care and control of the father from November 2015 for a period of approximately one year.

During that time the mother continued to reside and work in Ireland where she has permanent employment. She maintained telephone

and Skype contact with the children. She visited Poland on a number of occasions including in February, May, September and

November 2016. She alleges that her access to the children was impeded. She sought to bring the children back to Ireland in the

summer of 2016 and purchased airline tickets but the father never agreed to their return to Ireland.

6. In early November 2016, almost a year after the children had travelled to Poland, the mother instituted Hague Convention

proceedings in Poland seeking the summary return of the children to Ireland. The proceedings were dismissed by the Polish courts on

21st December 2016 and she appealed. Before the appeal could be progressed she removed the children from Poland and returned to

Ireland with them on 7th January 2017. Her appeal in the Hague Convention proceedings was ultimately dismissed by the Polish court

on 23rd March 2017.

7. It is not in contention that on 7th January 2017, at the date of removal by the mother, the children were habitually resident in

Poland. The removal took place without the father’s knowledge or consent.

Rights of custody in Poland

8. Under Polish law the father and mother are the holders of equal rights of custody. On 12th November 2016 the father instituted proceedings before the District Court

in Bielsko-Bia³a, Poland, seeking parental custody of the minors. That case was adjourned generally pending determination of the mother’s Hague

Convention proceedings before the Polish courts. It appears from the documentation exhibited that no determinations or orders of any

kind were made in the custody proceedings before the Polish District Court. By the time the mother’s Hague Convention proceedings

concluded before the Polish courts in late March 2017 the children were no longer resident there.

Mother self-represented

9. An unusual feature in this case is that the mother had no legal representation either in the High Court or at the appeal hearing

though she was assisted by a McKenzie friend, Mr. Ligezowski, a Polish lawyer.

High Court Judgment

10. Having heard the case on affidavit and having considered the report of the court-appointed psychologist Dr. N., concerning the

objections of Jan to being returned to Poland, the trial judge delivered a very comprehensive judgment on 29th January 2018. He

found that at the date of removal of the children on 7th January 2017 they were habitually resident within the jurisdiction of the

courts of Poland for the purposes of Article 3 of the Hague Convention. That finding is not appealed against. The trial judge was

satisfied that the father was, under applicable Polish law, the holder of rights of custody within the meaning of Article 3 of the Hague

Convention with regard to both children. After extensively analysing the relevant jurisprudence in light of the legal arguments raised

by the respondent he directed the summary return of the minors to the jurisdiction of the courts of Poland pursuant to the Hague

Convention. The mother appeals that decision.

The law

11. There are two primary instruments governing the abduction of children to this State of relevance in the instant case. The first is

the Hague Convention on the Civil Aspects of International Child Abduction signed at the Hague on the 25th October 1980 (“the

Hague Convention”). The Hague Convention was incorporated into Irish law by the provisions of the Child Abduction and Enforcement

of Custody Orders Act 1991. The second relevant measure is Council Regulation (EC) No. 2201/2003 of the 27th November 2003

concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental

responsibility (“the Brussels II bis Regulation”).

Hague Convention 1980

12. The preamble to the Hague Convention provides that its purpose is “to protect children internationally from the harmful effects of

their wrongful removal or retention”. Under Article 3 the taking or keeping of a child is “wrongful” if it is in breach of “rights of

custody”. The same applies under the Brussels II bis Regulation, which complements and takes precedence over the Hague

Convention as between all but one of the member states of the European Union.

13. One of the functions of “rights of custody” is to ensure that long-term decisions regarding a child’s future are taken in the

country where he or she was habitually resident immediately beforehand and not in the country to which he has been taken.

Article 12

14. The respondent asserts that all the factors necessary to trigger a summary return pursuant to Article 12 are established in this

case. The father is the holder of rights of custody and was exercising same prior to the removal of the children from Poland. The

removal breached those rights. The children were habitually resident in Poland. It is argued that the appellant has misconstrued the

discretionary element in Article 12 which only arises if the proceedings are instituted over one year after the wrongful removal. In this

case the Special Summons issued on 14th August 2017. I am satisfied as a matter of construction that the word “now” in Article 12

refers to the date of commencement of the proceedings. Accordingly, the second sentence of Article 12 is not engaged in this case.

15. By order of the High Court perfected on 1st November 2017 it was directed pursuant to Article 11(2) of the Brussels II bis

Regulation that Dr. N. conduct an interview with the minor Jan, then aged 7, “… for the purposes of the Court ensuring that the said

child is given the opportunity to express his views and be heard in the proceedings”. The interview was to relate to the following

matters:

(a) The circumstances in which he was living prior to coming to Ireland on 7th January 2017.

(b) His circumstances in Ireland since that date.

(c) His wishes in relation to his future care and living arrangements, including where he would like to live.

(d) If those wishes do not include living in Poland, whether he has any objection to return to live in Poland.

(e) In the event of any objection to returning to live in Poland being expressed, his reasons for such objections.

(f) If he were to return to live in Poland, any wishes as to how and when the return would take place.

(g) Should he stay in Ireland or return to Poland, what role he envisages for the non-resident parent and extended non-

resident family in his future life.

(h) Any other information he may wish the Court to take into account in deciding the application that he be returned to

Poland.

16. Additionally, the professional view of Dr. N., a child psychologist and psychotherapist, was sought in regard to the following

matters:

(i) The degree of maturity of Jan.

(ii) Whether he is capable of forming his own views and a general description of the type of matters about which he

appears capable of forming his own views.

(iii) Whether Jan objects to being returned to Poland.

(iv) If he does object;

(a) The grounds of such objections and whether same 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 a desire to remain in Ireland or whether it relates an objection to living with or living in the vicinity of a

particular parent and/or a wish to live with the other parent.

(b) Whether any objections expressed have been independently formed or result from the influence of any other

person including a parent or sibling.

17. The trial judge in his judgment noted as follows:

“He was interviewed for the purpose of obtaining his views and allowing them to be expressed in the hearing. At the time

of interview on 7th November, 2017 he was aged seven years and seven months and was able to articulate his thinking

and wishes. His level of maturity appeared to be that of a typical seven year old. He was capable of forming his view. He

expressed that he was happy in Ireland and wanted to stay. He had fun in Ireland and he liked living with his mother, his

sister and her boyfriend. It was not thought that he was under any influence from his mother or sibling or his mother’s

boyfriend in stating his preference. However, he did make reference to having good friends in school in Poland with whom

he played and visited in their homes.” (para. 59 of the judgment)

18. In evaluating the objections of Jan, the learned trial judge stated:

“The court has considered the objection made by … to his return to Poland and his father’s custody and his preference to

remain in Ireland with his mother and sibling. He has attained a degree of maturity at which it is appropriate to take his

views into account and I do so.” (para. 62)

19. At para. 63 the learned judge states:

“The court has no reason not to accept that the child’s views are those expressed in the report. However, the full nature

and extent of the reality of his life with his father in Poland and his relationship with his father prior to his departure for

Poland is not in my view reflected in the short report of the interview submitted. This is particularly so when one

considers the fact that his mother was absolutely satisfied to leave him in the care of his father in November 2015 and

the fact that the Polish Courts have already received evidence in relation to the care of the children, their education and

welfare in the course of the Hague Convention proceedings in that jurisdiction. It also received evidence from relations of

both parents as to how he cared for the children. The court also takes into account that the children in this case are

very young.”

20. At para. 64 the learned judge concludes:

“I am satisfied having considered all of the evidence that the respondent has not made out a case that the children are

at grave risk of physical or psychological harm or will be otherwise placed in an intolerable situation if returned to Poland.”

Grounds of Appeal

21. The mother is self-represented and her notice of appeal is wide ranging. The essential grounds include that:

i. The children are settled in Ireland.

ii. The older child objects to a return to Poland.

iii. The respondent does not have rights of custody under the laws of the courts of Ireland.

iv. The children moved to Poland for one year only.

v. Return would expose the children to grave risk of physical or psychological harm or otherwise an intolerable situation

within the meaning of Article 13.

The appeal

22. The following issues fall to be determined in this appeal:

(a) Whether Jan objects to being returned within the meaning of Article 13 of the Hague Convention.

(b) Whether Jan has attained an age and a degree of maturity such that his objections, as have been ascertained, ought

to be taken into account and the weight, if any, to be accorded to same.

(c) Whether the trial judge erred in exercising his discretion to order the return of the minors to Poland notwithstanding

the objections of Jan.

(d) Whether there is evidence of grave risk that the summary return of the children to Poland will expose them either to

physical or psychological harm.

(e) Whether the return of the children to Poland would subject either or both children to an intolerable situation within the

meaning of Article 13 of the Hague Convention.

The objections of Jan

23. The appellant relies on Article 13 of the Hague Convention.

The relevant extract provides as follows:

“The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to

being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”

24. The ground of appeal relied upon by the mother is that Jan objects to being returned to Poland and has “expressed a clear desire

to remain with me [mother] and it is in their best interest to stay in Ireland.”

General principles regarding the defence under Article 13 that a child objects to their return

25. The objection by the child is of itself a separate and distinct ground of defence for refusing to effect a summary return of an

abducted child under Article 13 of the Hague Convention.

26. Whether a child objects to being returned to the requesting state is a question of fact. The degree of maturity of the child is also

a question of fact.

27. Once the court ascertains that the child objects and has attained the degree of maturity to formulate and independently express

those objections, the next step is to establish whether it is appropriate to take account of his views. In doing so it is making a finding

of fact.

28. Based on the jurisprudence in this jurisdiction and elsewhere pursuant to the Hague Convention and the Brussels II bis Regulation

there is no fixed age below which a child’s objections will not be taken into account. Nevertheless, it is clear from the jurisprudence

that the younger the child the less likely it is that he or she will be found to have the degree of maturity which makes it appropriate

for the court to take his or her objections into account.

29. In assessing views expressed by the child a distinction can be drawn between, on the one hand, an objection and, on the other,

a preference against returning or a reluctance to be returned. That is manifest from the clear language of the Convention. The word

“objects” imports an intensity of feeling which goes beyond the usual ascertainment of wishes and preferences.

Report of child’s views

30. The short succinct report is a sorrowful symphony of the boy’s own view of his lived experience in Poland.

31. It is clear from a reading of the report of the psychologist Dr. N. that the objections of the child are significant and range far

beyond a personal subjective preference to live with one parent over another. The report is based on a meeting with Jan held on 7th

November 2017. It is unequivocally stated in the report as follows:

“…(he) objects to returning to live in Poland with his father because he alleges his father beats, screams at him and

grabbed him. …(he) does not wish to return to live in Poland.”

The report states:

“…(the) reasons for his objections to returning to Poland are as follows: he stated his father screams at him and beats

him.”

The child did not express any wish to return to Poland. It is clear that the psychologist was satisfied that Jan was able to articulate

his thinking and wishes. His presentation suggested that he was and is capable of forming his own views. His views do not appear to

be based on whim or caprice. It is expressly recorded that Jan “objects to being returned to Poland”. The basis for that objection is

expressed to be that he objects to live in Poland with his father. The report records him having stated that his father “shouted” at

him and “beat” him. The child’s objection to “returning to Poland was based on his experience and recall of life in Poland with his

father.”

32. In this case, a summary return to Poland pursuant to the Hague Convention is synonymous with and inextricable from a return to

the sole care of his father since his mother has ceased to reside there about ten years ago.

33. He wants to remain in Ireland with his mother and sister and his mother’s partner. His wishes were expressed unambiguously. The

assessment concluded 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.”

34. The trial judge noted that he was satisfied that the child’s views were faithfully recorded in the report. He questioned whether

the lived experience of Jan in the care of his father in Poland was fully reflected in the report.

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 Jan in Ireland prior to that date could be relevant in regard to the weight to be attached to the objections of Jan or

otherwise material to his exercise of discretion.

36. In A.U. v. T.N.U. [2011] IESC 39, [2011] 3 I.R. 683 delivered on 13th October 2011 Denham C.J. stated:

“There is a growing understanding of the importance of listening to a child. As Baroness Hale said in In Re D (A Child)

(Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 A.C. 619 at p. 641:

[57]… But there is now a growing understanding of the importance of listening to the children involved in children’s

cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do

listen to children understand that they often have a point of view which is quite distinct from that of the person

looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to

do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to

hear what the child has to say than it is for refusing to hear the parents’ views.”

37. The Supreme Court also noted the decision of M.N. v. R.N. (Child abduction) [2008] IEHC 382, [2009] 1 I.R. 388, where the High

Court held that a six-year-old child should be heard. In the latter case Finlay Geoghegan J. stated:

“On the facts of this application, the child is aged six years and appears from the affidavit evidence of the parents to be

of a maturity at least consistent with his chronological age. On those facts, I do not find that prima facie he is a child not

capable of forming his own views in the sense I have outlined above. It appears to me unavoidable that a judge making

such a decision must rely on his or her own general experience and common sense. Anyone who has had contact with

normal six year olds knows that they are capable of forming their own views about many matters of direct relevance to

them in their ordinary everyday life.” (para. 32)

38. Denham C.J. noted that whilst the latter decision related to a different regime it was fundamentally concerned with the issue of

the maturity of a child’s views and, as such, it was helpful. The Supreme Court cited with approval a High Court decision of Edwards

J. Bu. v. Be. (Child abduction) [2010] IESC 38, [2010] 3 I.R. 737 where it was stated:

“While not setting a rigid rule, the High Court considered in M.N. v. R.N. (Child abduction) [2008] IEHC 382, [2009] 1 I.R.

388 that prima facie it was inappropriate for a court to hear a child under the age of six. This is not an inflexible rule, but

will depend on all the circumstances of the case.” (para. 15)

39. In approving the said judgment Denham C.J. stated:

“… the analysis is useful as it is addressing the issue of the maturity of a child.” (para. 25)

Totality of the evidence to be considered

40. Denham C.J. stated at para. 32:

“The 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.”

“Having regard to the views of the children, it was for the trial judge to determine the weight to be applied to those

views. This he did. The High Court Judge identified factors which were relevant and applied them.” (para. 33)

41. In A.U. v. T.N.U. the Supreme Court considered and approved the decision of the House of Lords in Re M. & Anor (Children)

(Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 A.C. 1288. In the latter case., Baroness Hale clarified some uncertainties

and misconceptions that had developed around the defence of the child objecting under Article 13 of the Hague Convention of 1980.

Denham C.J. concurred with the principle that the views of even quite young children should be considered and she agreed with the

importance of listening to a child.

42. In the abovementioned case the trial judge had found that the children were settled in England and the objection exception had

been established. The trial judge expressed the view that in such circumstances a summary return could only be refused if the case

was exceptional and he found, on the evidence before him, that it was not and thereby ordered the return of the children to

Zimbabwe. The House of Lords allowed the appeal and dismissed the father’s application for the return of the children. The House of

Lords further concluded that where the objection of the child has been established there is no further or additional test in the form of

a requirement that the reasons or the case be “exceptional” for a discretion to be exercisable by the trial judge to permit the child to

remain.

43. Baroness Hale stated at para. 40:

“… 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.”

44. In her judgment she stated that the discretion of the trial judge once the child’s objection is made out is effectively at large and

is not confined to a narrow category of factors:

“… 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…” (para. 43)

45. The decision of the English Court of Appeal in Re M. (Children) (Republic of Ireland) (Child’s Objections) (Joinder of Children as

Parties to Appeal) [2015] EWCA Civ. 26 is of assistance in clarifying that the gateway stage should be confined to a straightforward

and fairly robust examination of whether the simple terms of the Convention were satisfied, in that the child objected to being

returned, and had attained an age and degree of maturity at which it was appropriate to take account of his views.

46. I am satisfied that the trial judge was correct in his evaluation that the evidence in this case established that Jan’s view went

well beyond a mere preference to remain in Ireland and amounted to an objection within Article 13 of the Hague Convention to a

summary return to Poland.

47. Once the trial judge finds that the child objects then the second step involves the exercise of discretion in light of the nature and

basis of the objection and the facts of the case falls to be exercised.

Must the objection be to being returned to the country of habitual residence rather than to the parent or guardian?

48. There is, admittedly, some authority for the proposition that the objection of the child must be to return to the country of

habitual residence rather than returning to particular circumstances within that state.

49. Denham C.J. in A.U.v. T.N.U. observed:

“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.”

(para. 32)

“Having regard to the views of the children, it was for the trial judge to determine the weight to be applied to those

views. This he did. The High Court Judge identified factors which were relevant and applied them.” (para.33)

50. In the case of Re M (A Minor) (Child Abduction) [1994] 1 F.L.R. 390 Butler-Sloss L.J. observed, at p. 395, that the objections of a

child may encompass two inextricably linked elements, namely, return to a requesting state resulting in an inevitable consequence

that the child will be in the sole care of one parent and separated from the other. She noted:

“It is true that Article 12 requires the return of the child wrongfully removed or retained to the State of habitual residence

and not to the person requesting the return. In many cases the abducting parent returns with the child and retains the

child until the court has made a decision as to the child’s future. The problem arises when the mother decides not to

return with the child. It would be artificial to dissociate the country from the carer in the latter case and to refuse to

listen to the child on so technical a ground. … Such an approach would be incompatible with the recognition by the

Contracting States signing the Convention that there are cases where the welfare of the child requires the court to listen

to him. It would also fail to take into account Art 12 of the United Nations Convention on the Rights of the Child 1989.

From the child’s point of view the place and the person in those circumstances become the same… I am satisfied that the

wording of Art 13 does not inhibit a court from considering the objections of a child to return to a parent.”

51. For my part, while I do not think it necessary to arrive at a definitive view on this question, these comments of Butler-Sloss L.J.

seem to be correct as a matter of law. In the present case, for example, it could be said that it is necessarily implicit in the findings

of the trial judge that Jan has no objection as such to residing in Poland. His objection is rather a different one, namely, that he

wants very much not to have to reside under the exclusive control of his father, the applicant, which will be the inevitable and

practical consequence of a summary return. In my view this objection is in itself sufficient to trigger the provisions of Article 13 of the

Convention.

52. The two outcomes are inextricably bound up - living under the control of the father inexorably follows from a return of the minors

to Poland. Hence Jan’s wish is to stay with his mother in Ireland and in that sense he “objects” to being returned to Poland.

53. In the instant case it is not contested that the mother has had a fixed place of residence in this jurisdiction for the past 10 years

and has resided here for the entire lives of the children.

Discretion

54. The objections of the child are not determinative of the matter but simply open the door for the exercise of discretion by the trial

judge.

Brussels II bis

55. Brussels II Revised Regulations (EC) no. 2201/2003 recognises the importance of children’s rights by reversing the burden in

relation to hearing the child. Article 11.2 provides:

“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.”

56. Baroness Hale in the House of Lords decision of In re D (A Child)(Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 A.C.

619, stated:

“Although strictly this only applies to cases within the European Union, … the principle is in my view of universal

application and consistent with our international obligations under article 12 of the UN Convention on the Rights of the

Child. It applies, not only when a “defence” under article 13 has been raised, but also in any case in which the court is

being asked to apply article 12 and direct the summary return of the child – in effect in every Hague Convention case. It

erects a presumption that the child will be heard unless this appears inappropriate. Hearing the child is, as already stated,

not to be confused with giving effect to his views.” (para. 58)

57. At the discretion stage the court considers the child’s objections alongside the other relevant factors. The child’s objections

cannot be presumed to be determinative of an application.

58. The decision of the English Court of Appeal in the case Re W. [2010] EWCA Civ. 520 decided in May 2010 supports a more basic

approach. Wilson L.J. stated at para. 22:

“Earlier confusion in our jurisprudence about the meaning of the phrase ‘to take account’ in Article 13 (exemplified, for

example, in Re T (Abduction: Child's Objections to Return) [2000] 2 FLR 192 at 204 B-D) has in my view now been

eliminated. The phrase means no more than what it says so, albeit bound of course by considerations of age and degree

of maturity, it represents a fairly low threshold requirement. In particular it does not follow that the court should ‘take

account’ of a child's objections only if they are so solidly based that they are likely to be determinative of the

discretionary exercise which is to follow: see In re D above per Baroness Hale, at [57]…”

59. On the basis of the court-commissioned psychological report prepared by a competent independent child psychologist there is

uncontroverted evidence that the minor Jan does object to being returned to Poland. The practical consequence of a summary return

to Poland is that Jan, along with his sister Lena, will be under the sole day-to-day care and control of the father. It is clear from the

report that Jan has attained an age and a degree of maturity at which it is appropriate to take account of his views.

60. Upon these gateway elements being established, it was open to the learned trial judge to exercise his discretion as to whether or

not to return the minors to the jurisdiction of the courts of Poland. Once the gateway elements are demonstrated, the court may

return the minor but is not obliged to do so.

61. The exercise of discretion by the trial judge after a ground for opposition to summary return based on the objections of the child

is established requires to be child-centred. Taking account of a child’s views does not mean that those views are necessarily

determinative or even presumptively so. Once the exercise of discretion comes into play, as it has done in this case, it is for the court

to evaluate the child’s objections, the type of conduct alleged to have been engaged in to which the child objects, the existence of

any evidence to suggest that the views are independently formed by the child and authentically emanate from his own concerns and

the extent to which there is any other evidence that would undermine, address or be fundamentally inconsistent with the concerns of

the child and the objections articulated.

62. In the instant case the basis of the child’s objections is identified in the psychological report and does not require repetition. The

trial judge was of the view that the very fact that the mother had placed the children in the custody of the father in November 2015

is probative of the fact that she had no concern for Jan’s welfare or “the full nature and extent of the reality of his life with his father

in Poland” (para 63). However, any decision made by the mother in respect of the welfare of the children Jan and Lena in November

2015 over three years prior to the High Court hearing, could not be probative as to whether a valid defence had been established

under Article 13 of the Hague Convention based on the child Jan objecting nor could it be relevant to the exercise of judicial

discretion once the objections of the child were established.

63. The conduct of the mother in November 2015 could not shed any light on the objections of Jan which are based on his own

subsequent experiences in Poland in late 2015/2016 when he was in the sole care and control of his father. That experience wholly

post-dates the mother’s decision to place the children with their father.

Grave risk

64. In the instant case it would appear that the trial judge 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) of the Convention. In this regard, at para. 60 of the judgment, the trial

judge concludes:

“The court is not satisfied that the evidence adduced by the respondent is so clear and compelling as to establish as a

matter of probability any grave risk of physical or psychological harm or the existence of an intolerable situation based on

the allegations advanced against the applicant.”

However, this is not the correct approach to be taken by a court in the assessment of a defence that a child objects.

65. It is well established that the defence that a child “objects” under Article 13 is entirely separate from the issue of grave risk: Re S

(A Minor) (Abduction) [1993] 2 W.L.R. 775. In that case the father contended, inter alia, that, in exercising its discretion under

Article 13 to refuse to order the return of a child, the court could only take into account and act on the child's objections if it was

also shown that there was a grave risk that return of the child would expose her to psychological harm or place it in an intolerable

situation within the meaning of Article 13. The English Court of Appeal stated at p. 250:

“It will be seen that the part of article 13 which relates to the child's objections to being returned is completely separate

from para (b), and we can see no reason to interpret this part of the article, as we were invited to do… as importing a

requirement to establish a grave risk that the return of the child would expose her to psychological harm, or otherwise

place her in an intolerable situation. Further, there is no warrant for importing such a gloss on the words of article 13…”

This represents a correct statement of the interpretation of Article 13.

The correct approach

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.

67. Baroness Hale did refer in Re M. at para. 46 to “… 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.” That approach was

followed by the Supreme Court in A.U. v T.N.U. at para. 28.

68. It is now recognised that children as young as six can be of sufficient maturity to have their objections taken into account e.g.

see M.N. v. R.N. per Finlay Geoghegan J.

69. Article 11(2) of Brussels II bis requires the child to be heard during the proceedings and also an assessment of the child’s

maturity.

70. An overly prescriptive and over intellectualised approach is to be discouraged if the Convention is to operate properly.

71. There was no suggestion that the child Jan is merely parroting the views of a parent or that he does not personally object to

being returned to Poland.

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 Jan. The children had never been in the sole care of their father up until their departure

from Ireland in November 2015.

73. Once the trial judge had satisfied himself that Jan had attained a degree of maturity at which it was appropriate to take his views

into account (which was established at para. 62) and that those views amounted to an objection to his return to Poland and to his

father’s custody (also at para. 62) there was no requirement that either grave risk or an intolerable situation had to be proven before

discretion could be exercised to refuse a return to Poland and, with respect, he fell into error in so holding. The child articulated his

lived experience and his recall of life in Poland under the care and control of his father and the court-appointed assessor did not

identify any influence from any relevant third party in regard to that evidence.

74. It is fitting in this regard to take account also of Article 12 of the U.N. Convention on the Rights of the Child. The UNCRC does not

have direct legal effect in this state. However, the notion that children’s rights are indivisible and interdependent is reinforced by

Article 2 of the said Convention, a general principle which requires that the provisions and principles contained therein be guaranteed

to all children without discrimination. Articles 2 and 12 of the UNCRC guarantee that all children, regardless of their circumstances,

must have their views respected, with those views being afforded due weight in accordance with their age and maturity.

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.

76. On the entirety of the facts in this case as disclosed in the affidavits and in light of the report of the psychologist I would refuse

to order a summary return of the minors to Poland.

77. In the case of Jan, the refusal is based on his objections to a return to Poland where he and his sister will be placed under the

sole care and control of his father. In the case of Lena it is primarily by reason of the fact that the children should not be separated

from one another given their close relationship and given that they have always resided together both in Ireland and in Poland it

would not be appropriate to direct her return alone.

78. Making a return order in respect of the child Lena alone would result in separating the children from one another and would risk

creating an interference with the siblings’ Art 8 ECHR rights as interfering with the right to respect for family life. In Neulinger v

Switzerland [2011] 2 F.C.R. the Grand Chamber suggested, at para 139, that Art 8 required the court to which an application under

the Hague Convention was made—

“[to conduct] an in-depth examination of the entire family situation and of a whole series of factors, in particular of a

factual, emotional, psychological, material and medical nature, and [to make] a balanced and reasonable assessment of

the respective interests of each person…”

On 13 December 2011, in X v Latvia (App no. 27853/09, ECtHR 13 December 2011) , the European Court of Human Rights (Third

Section) reiterated, at para 66, in terms identical to those in para. 139 of the Neulinger case, the suggested requirement of an in-

depth examination in the determination of applications under the Hague Convention.

Passage of time

79. Denham C.J. observed at para. 37 in A.U v. T.N.U.:

“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 Re M

[2008] 1 AC 1288 where she states at paragraph 43:

“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.”

80. A particular element in this case is that from their respective births until mid-November 2015 the two children resided in Ireland in

the custody of both parents. Further, since at the latest the 7th January 2017 they have resumed living in Ireland again under the

care and control of their mother and have resettled in this jurisdiction.

81. It will be recalled that under Article 19 of the Hague Convention “a decision under the Convention concerning the return of the

child shall not be taken to be a determination on the merits of any custody issue.”

Delay

82. It was apparent to the father from early January 2017 that the mother was in Ireland with the two children. In the context of the

strict need for expedition as expressly specified in the Hague Convention itself and the Brussels II bis Regulation it is difficult to

understand why a period of over seven months was permitted to elapse before proceedings were instituted and indeed the father’s

request for a summary return pursuant to the Hague Convention was received at Smithfield Law Centre, on the 19th June 2017, over

five months subsequent to the children being returned to Ireland. Time is of the essence in child abduction proceedings. This is

particularly so in circumstances where, such as the present, the children have lived the greater part of their lives in this jurisdiction.

Further, significant changes have happened in Poland since their departure, including the fact that the father has apparently yielded

up accommodation which had been occupied by them. However, the proceedings were instituted within one year from the date of

removal of the children from Poland and any argument or ground of defence based on the fact that over a year has elapsed since the

mother removed the children from Poland is not established.

Conclusions

83. Once the court was satisfied, as the trial judge was, that the child Jan objected to a summary return and had attained an age

and a degree of maturity at which that objection ought to be taken into account it was a matter for the trial judge, on the facts, to

exercise his discretion without the necessity of having to find either grave risk or an intolerable situation – which are entirely separate

and discrete defences under Article 13(b) of the Hague Convention.

84. There is nothing to suggest that Jan’s objections are other than genuinely his own. The trial judge accepted the assessment of

Dr. N. in that regard. The child’s response demonstrated a cogent and rational basis for not wanting to return to Poland in

circumstances where the practical consequence of the return is that he would be placed in the sole care of his father. The report

outlines his lived experience in Poland and his clear wish is to be cared for by his mother.

85. This is clearly a complex case. It is not the function of a court in Hague proceedings to carry out any sort of inquiry as to future

welfare of children. Indeed, as is clear from Article 11 of the Convention, expedition is at the heart of the Hague Convention process.

86. This is a case where a summary return of the children to Poland, the country in which these Irish born Irish citizens were

habitually resident on 7th January 2017,inevitably means a summary return to the exclusive care and control of the applicant father-

the two outcomes are inevitably and inextricably linked.

87. There were irreconcilable differences in this case between the parties with regard to factual issues. No oral evidence was heard in

the High Court. Given the mother’s position, she having established a fixed place of abode, permanent paid employment and residence

in this jurisdiction for upwards of a decade, it is clear that her fixed and future residence lies in this jurisdiction. These facts

presented unusual difficulties for the trial judge in devising a path effective to do justice in a summary fashion to the respective

parties and the children without prejudicing any of the stakeholders and at the same time achieving a prompt resolution of the

proceedings.

88. I am satisfied on the basis of the available evidence and in particular the report of Dr. N. that Jan objects to being returned to

the jurisdiction of the courts of Poland.

The trial judge erred in imposing a requirement that grave risk or an intolerable situation had to be proven before discretion could be

exercised to refuse a return to Poland arising from the proven objection of Jan to being returned to Poland. The “child’s objections”

part of Article 13 is to be read independently of the rest of the Article and in particular of Article 13(b). There is therefore no

additional requirement to establish a grave risk that a return order would expose the child to physical or psychological harm or an

intolerable situation.

89. “Intolerable” is a strong word, but when applied to a child must mean a situation which this particular child in these particular

circumstances should not be expected to tolerate. Given the close relationship between the siblings and the fact that they provide

important familial continuity for each other, in circumstances where the objections of Jan warrant that his summary return to Poland

be refused, I am satisfied that to return Lena alone, severing her from her mother and only sibling, would place her in an intolerable

situation within the meaning of Article 13 (b) of the Hague Convention.

90. In a case involving siblings, such as arises here , Lena should not be deprived of her brother’s company nor Jan hers. Such an

outcome would place Lena in an intolerable situation and not accord with the children’s Article 8 ECHR jurisprudence.

91. The intensity of the child Jan’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.

92. The exercise of discretion in the instant case favours refusing a summary return of the children to Poland.

93. The grounds of appeal based on intolerable situation and grave risk of physical or psychological harm are not made out.

94. Given the tender ages of the children and the importance of the relationship of one to the other, there can be no question of the

children being split up. Absent any evidence to the contrary, it is inherently in their best interests that they remain together. Any

other outcome would in and of itself give rise to an intolerable situation were Lena to be returned to Poland alone where the

objections of Jan are sufficient to warrant a determination to exercise judicial discretion in favour of refusing a summary return in his

case.

95. I would allow this appeal and substitute for the judge’s order an order dismissing the father’s application for the return of the

children to Poland.