High Court orders return of abducted child to Poland under Hague Convention despite minor's expressed wish.

REDACTED

[2025] IEHC 432

Record No. 2025 1 HLC

THE HIGH COURT

FAMILY LAW

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991

AND IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

AND IN THE MATTER OF COUNCIL REGULATION 2019/111/EC AND IN THE MATTER OF THE INHERENT JURISDICTION OF THE COURT

AND IN THE MATTER OF M.X. (A MINOR)

BETWEEN:

A.X.

APPLICANT

AND

R.X.

RESPONDENT

JUDGMENT of Ms. Justice Nuala Jackson delivered on the 21st day of July 2025.

INTRODUCTION

1. The Applicant issued proceedings on the 20th January 2025 seeking the return of the minor, M.X., to Poland pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) and Council Regulation 2019/1111/EC (“the Regulation”). The identity of the parties and certain potentially identifying information has been redacted or presented in a manner which minimises the potential for the minor to be identified. The case is unusual insofar as it is the second set of proceedings seeking such relief, the first such having commenced in July 2023 (“the first proceedings”) and having concluded by Orders of this Court (Gearty J.)

on the 30th May 2024, the 11th June 2024 and the 9th July 2024, the first of which Orders recites “… the parties by said Counsel informing the Court that this action has settled and that [M.X.] the minor named in the title hereof will be voluntarily returned to the jurisdiction of Poland in or around the first week of July 2024”. This first Order continues on to note the undertaking of the Applicant father “not to pursue a prosecution in criminal proceedings against the Respondent in the Jurisdiction of Poland” and furthermore to note “that the Applicant waives his Access Order pending further determination by the Polish Courts on the understanding that the Polish Courts will act quickly in relation to same …”.

2. On the 11th June 2024, the matter was again mentioned to this Court (Gearty J.), the voluntary return was confirmed by Counsel for the Respondent and, by consent, the previous Order restraining removal of the child from Ireland was vacated.

3. It must be stated that there was no factual determination of issues in these first proceedings and no Order for return was made nor were any defences considered or determined. These first proceedings were formally concluded on the 9th July 2024 when the first proceedings were struck out, it being confirmed to this Court (Gearty J.)

by Counsel for the parties that the child had been returned to Poland. It would appear that, contrary to the confirmation given to this Court, the Respondent herein purchased a return ticket at the time of return to Poland in June 2024 and by the 9th July 2024 had returned to Ireland with the child. The child did return to Poland (brought by the Respondent mother) subsequent to the recording of the agreement for voluntary return in late May but this was arranged by the Respondent as a potentially temporary visit only and she, once again, left Poland for Ireland, having remained there but a short period. The Applicant states that he ended the first proceedings because he believed that the child was back in Poland as, it must be added, did this Court.

4. This presents a most unsatisfactory situation both in terms of the applicable legislation and the international child abduction regime here engaged and also in terms of the representations and submissions made to this Court in the context of the first proceedings. For the avoidance of all doubt, as regards the latter, I have no reason to doubt that the legal representatives of the Respondent in the first proceedings (she had the benefit of a solicitor and experienced Counsel) at all times acted in accordance with instructions. I will consider the matter of the Respondent’s instructions further below.

As regards the former, I consider it appropriate to reference and recognise the endorsement of amicable resolution and of voluntary return reflected in the legislative framework applicable. Article 7c) of the Convention states:

“Central Authorities shall co-operate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.

In particular, either directly or through any intermediary, they shall take all appropriate measures – …

c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues; …”

5. Article 10 of the Convention states: “The Central Authority of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child.”

6. Recital 43 of the Regulation states, inter alia:

“In all cases concerning children, and in particular in cases of international child abduction, courts should consider the possibility of achieving solutions through mediation and other appropriate means, assisted, where appropriate, by existing networks and support structures for mediation in cross-border parental responsibility disputes.”

7. Article 25 of the Regulation states:

“Article 25

Alternative dispute resolution

As early as possible and at any stage of the proceedings, the court either directly or, where appropriate, with the assistance of the Central Authorities, shall invite the parties to consider whether they are willing to engage in mediation or other means of alternative dispute resolution, unless this is contrary to the best interests of the child, it is not appropriate in the particular case or would unduly delay the proceedings.”

8. It is regrettable that notwithstanding the conclusion of the 2023 proceedings little in excess of one year ago, the issue of the abduction of M.X. has, yet again, come before this Court at this time.

9. I was provided, by way of exhibit, with a transcript of the hearing before the Polish Court on the 11th June 2024. Both parties attended this hearing and were legally represented at it. It is of considerable concern that on that date the Respondent informed the Polish Court: a. Through her lawyer, that he did not know whether the case in Ireland has been concluded (00.04.02). (The Applicant’s lawyer stated that a decision had been “passed” in Ireland and that the Respondent had been “ordered”

to return. It was indicated that this return should take place by the end of August). The Irish Order of the 30th May 2024 would not appear to have been provided to the Polish Court although perfected on the 31st May 2024.

b. The Respondent informed the Polish Court:

“I was in the court in Ireland last month and I did not receive any information about the ruling. I have information in my email about a hearing date on July 7 or 9. The court informed me that they would check whether I had returned to the country.”

10. These submissions and representations were made to the Polish Court notwithstanding that voluntary return had been agreed and such agreement and related undertakings and assurances had been proffered to this Court on the 30th May 2024 and, on the very same date as the hearing in Poland, the 11th June 2024, the intention of voluntary return had been confirmed to this Court and in consequence the Irish Orders restraining the removal of M.X. from Ireland had been vacated.

AGREED FACTS

11. It is agreed that the parties married [redacted] 2017 in Poland. There is one child of the marriage, M.X., born in Poland on the [redacted] 2018 who is in consequence 7 years old. The Applicant is named on the child’s birth certificate. It is the return of M.X. to Poland which is sought by the Applicant in the within proceedings. It is agreed that the parties cohabited together in the residence of the Applicant’s parents and that they separated in or about September 2021. The Respondent went to reside with the child in another premises in Poland. There is a dispute as to the ownership of this premises (the Applicant asserts that it is jointly owned; the Respondent asserts that ownership of this residence is hers alone) but I do not believe that much turns on this save that the Respondent does have and has at all material times had accommodation in Poland. It is common case that the Respondent and the child went to reside therein when the parties separated. In the months after September 2021, the Applicant had access with the child on a regular basis, such visits taking place in the home of his parents. Divorce proceedings were instituted by the Respondent in September 2022. Documents relating to these proceedings were exhibited in the Affidavit of the Applicant in the within proceedings. These divorce proceedings are still ongoing. Both of the parties are Polish nationals as is M.X.

The divorce proceedings:

12. These were issued by the Respondent on or about the 30th September 2022 and she was legally represented in the context of such issuance. These proceedings sought child arrangement reliefs and also financial reliefs. These proceedings did not seek permission to relocate the child to Ireland or elsewhere. The reliefs sought by the Respondent (Applicant in those proceedings) in respect of the child were:

• A limitation of the father’s parental authority in respect of M.X.;

• A ruling that the place of residence of the child be with the mother;

• A regulation of contact between the father and the child being “on the first and third weekend of the month, by picking her up on Friday at 3 pm and taking her to the [mother’s] on Sunday until 7 p.m.”;

• Interim custody of the child with the mother was sought;

• Maintenance (interim and ongoing) for the child was sought.

13. In the substantive pleadings, the Respondent alleges alcohol addiction on the part of the Applicant and a failure to maintain and the Applicant’s lack of involvement in the life of M.X. However, she states:

“The parties lost their emotional, physical and economic bonds, which led to frequent misunderstandings and mutual incomprehension in many life situations. [unclear] for the benefit of the minor daughter, the plaintiff requests a divorce without adjudicating on the defendant’s guilt, because a possible

decision on guilt could lead to unnecessary conflict between the spouses.”

14. In addition, in the context of the relationship between the child and the Applicant, she pleads:

“The defendant, however, is a person who is unable to provide comprehensive and lasting care for his daughter on his own…., the plaintiff does not intend to deprive the minor of personal contacts with her father, thus proposing to establish a schedule of contacts in this respect, so that the father would continue to be present in the minor’s life.”

15. The address of the Respondent in these proceedings is the residential premises at [redacted], the Polish property in respect of which there is a dispute as to ownership between the parties. She also states therein “The minor feels well and comfortable in the plaintiff’s place of residence and is provided with good conditions for learning and having fun.” There is no reference to Sweden in these pleadings.

16. The Applicant filed a defence (Answer) to the divorce proceedings on or about the 7th February 2023. He too sought a divorce. He sought that parental authority remain jointly exercised by both parents and he sought that the permanent residence of M.X. be with him. He sought expert assistance (the Opinion of a team of court appointed experts) in relation to child arrangements for M.X. He sought interim contact arrangements be established between him and the child. Allegations of infidelity and misconduct are made against the Respondent. He pleads that he has been denied contact with M.X. since September 2022 which actions are unjustified, contrary to the child’s welfare and contrary to previous statements of the mother. He sought “the immediate intervention of the court” in this regard. The documents referenced in the Answer which the Applicant wished to rely upon in evidence in the divorce proceedings were not provided to me. He references the necessity to “rebuild a bond” with M.X.

17. The matter has been before the Polish courts on a number of occasions since the issuing of the divorce proceedings on or about the 30th September 2022, such hearing dates being the 21st April 2023, the 11th day of June 2024 and the 23rd day of January 2025.

Access orders in respect of M.X. in favour of the Applicant were made by Polish courts on the 21st April 2023 (it is accepted that neither the Respondent nor her solicitor attended this hearing but the Polish court was satisfied to deal with the matter and it is clear from exhibits in the present proceedings that the Respondent became aware of the Orders made on the April 2023 date1). I was provided with a document which was annexed to the Respondent’s submissions. This document was not exhibited by her in affidavits sworn by her but it appears to indicate that submissions in respect of the April 2023 hearing were made by the lawyer then representing the Respondent in the divorce proceedings. This indicates that the Respondent was aware of the matter being before the Polish court on the April 2023 date. The case was also before the Polish court in June 2024 and January 2025, the Applicant was present and represented at this time. I consider it important to recite the terms of the interim access order granted by the Polish court on the 21st April 2023:

“Given interim relief for the duration of the proceedings by regulating the contact of the defendant [applicant] with the parties’ minor daughter, [M.X.] born on [redacted] 2018 in Gdansk in such a way that the defendant will pick up the minor from the place of residence of the child’s mother and bring the minor back to the place of residence after the end of the contact every second Friday of the month from 6.00 p.m. to Monday until 6.00 p.m. starting from 28.04.2023 and every second Thursday of the month from 6.00 p.m. to Friday until 6.00 p.m. on Friday starting 4.05.2023.”

18. The Respondent has not complied with these orders but it is accepted that the Applicant had access visits with the child in June 2024 and August 2024. These would appear to

The exhibits in this regard are incomplete and, in consequence, somewhat confusing. It appears that the Orders were served on a lawyer, Atty. P., by the District Court in Gdansk under cover of a letter of the 28th April 2023. This does not appear to be the lawyer for either of the parties in the initiating documents (which are [redacted], K.A.P.G. (Plaintiff) and I.D. (Defendant). Atty. P. appears to be the lawyer who made submissions to the Court on behalf of the Respondent in March 2023 prior to and relating to the April 2023 application, being the submissions annexed to the Respondent’s submissions herein. There would appear to have been further court correspondence with Atty. P. by letter dated the 10th May 2023 relating to the removal of “formal deficiencies of the application for clarification”. This letter appears to derive from an Order of the Court (District Court Judge [Redacted]) of the 10th May 2023, addressed to the plaintiff’s attorney. It appears likely therefore that there was a change of lawyer by the Applicant at some point after the divorce proceedings issued and that this lawyer was made aware of the Orders of the 21st April 2023 by the letter of the 28th April 2023 referred to above. Additionally, a request for a statement of reasons brought by the Applicant’s lawyer was rejected by a Decision of the 4th July 2023. The Official Record of the January 2025 hearing indicates T.G. as being solicitor for the Plaintiff. Ms. A.S.K, solicitor, and Ms. I.D., of Counsel, appear to continue to represent the Defendant husband. have been visits arranged by agreement between the parties. The Respondent informed me that access was offered to the Applicant in October 2024 but this did not occur. The Respondent contends that this access was not availed of by the Applicant. The Applicant denies that such access was offered and states that the child had, again, been removed by the Respondent to Ireland and he was taking steps to commence the second proceedings. It is clear from the papers that the Applicant’s request to the Polish Central Authority which forms the basis for the proceedings was made on the 14th October 2024, resulting in the issuing of these proceedings on or about the 20th January 2025. At the January 2025 hearing he stated:

“Neither in October nor in December did my wife propose to me to meet the child. There was a time when I was blocked [on social media].”

19. It is common case that the Respondent has sought in her divorce proceedings to limit the parental rights of the Applicant but that this has not occurred.

20. The Respondent and the child are living at [redacted], County Kerry which has been their address for the duration of their time in Ireland.

FACTS IN DISPUTE AND ANALYSIS OF EVIDENCE CONCERNING DISPUTED FACTS

As is usual in these applications, only Affidavit evidence was submitted on behalf of the parties. I have considered the following Affidavits and the exhibits thereto:

• First Affidavit of the Applicant (undated in papers provided);

• First Affidavit of the Respondent (7th May 2025);

• Second Affidavit of the Applicant (23rd June 2025);

• Second Affidavit of the Respondent (24th June 2025).

21. Additionally, a report pursuant to section 47 of the Family Law Act, 1995 was ordered (29th April 2025) (O’Donnell J.) and this was prepared by Ms. Ruth More O’Ferrell (“RMOF”). The aim and focus of this report was to hear the wishes of the child in the context of a defence pursuant to Article 13 of the Convention. The same assessor had completed two reports in equivalent circumstances under the first proceedings and by Order of this court (18th June 2025) (O’Donnell J.) use of previous two reports was permitted in the within proceedings. In these circumstances, I have had regard to the three reports of RMOF. The contents of these reports will be considered below.

(a) Residential Arrangements of the Child Prior to First Removal:

22. The Applicant avers that he exercised weekend access with the child on a regular basis after the relationship of the parties ended. He avers to having enjoyed access on the weekend of the 25th September 2022 (a Sunday) but that thereafter his access was obstructed. At paragraph 7 of his Second Affidavit, he identifies (without dates) two distinct periods – one during which he attended at the apartment, the Respondent was present and would not admit him/let him see the child and a second period when he formed the view she had fled. He avers that he instituted proceedings to regulate access which resulted in the Order of April 2023. He avers that he continued to endeavour to exercise access subsequent to this Order, without success, but that the child was removed to Ireland, he believes, in or about May 2023. He avers that he became aware of the child’s being in Ireland in or about 1st June 2023, following police enquiries. The Respondent avers that she left Poland in or about April 2022. She says that she went to Sweden first and from there to Ireland, in or about May 2023. At a hearing before the Polish court in June 2024, the Respondent informed that court:

“I left for Ireland in April 2023, until then I lived for a while in Sweden and a little in Poland. Our child is over 6 years old. I did not talk to the Respondent about my daughter’s departure. We do not have limited parental authority. I met my partner in April 2022. In May 2022 I moved to Sweden with him. We met at the beginning of 2022. I lived with my husband until September 2021, then I moved out. I took my daughter to my husband family home every weekend or every other weekend from Friday to Sunday. I came from Sweden every month or month and a half and my husband saw our daughter. We lived in Sweden for 10 months. I didn’t ask my husband if I could take my daughter to Ireland. My husband and I did not consult or agree on anything. He has been working for a year. My husband received information from the Irish Court where his daughter lives. I can’t get along with my husband at all. I lived at [redacted] with my daughter. I did not inform about the change of address.”

23. It is clear that there was some deficit in the Applicant’s knowledge as to the whereabouts of M.X. at the time of the April 2023 hearing as the orders made at that time included, inter alia, “the plaintiff to give the defendant the whereabouts of the minor child within 5 days and inform him of any change within 2 days of the change.”

There is no indication in the Answer to the Divorce proceedings (February 2023) that the Applicant had any knowledge that his child was living anywhere other than Poland.

24. The Respondent avers that she moved to Sweden with the child in May 2022. An address in [redacted], Sweden is stated, being the home of her partner. She states that this property was sold in March 2023 and she then moved to Ireland, in April 2023, again with her partner.

25. The Respondent admitted in her evidence to the Polish court in June 2024 that any removal (whether to Ireland or Sweden) was without the consent or knowledge of the Applicant.

26. The Applicant in his second Affidavit puts the Respondent on full proof of having moved to Sweden. She addresses this in her Second Affidavit. She references letters confirming the issuing of a PPS number in Sweden (the document exhibited appears to be an application to the Swedish tax authorities and does not confirm the issuing of PPS numbers). At hearing, the Respondent informed me that no PPS numbers issued in Sweden because she was not in employment there.

27. I have considered the documentation exhibited by the Respondent in relation to her alleged residence in Sweden. This comprises:

• An undated document submitted by the Respondent to the Polish court entitled “Application to establish the child’s place of residence with the applicant”. The contents of this document indicate that it dates from a time after August 2022. It should be noted that the address used in it for the Respondent and the child is the Respondent’s Polish address ([Redacted] Gdansk). In the document she references that the child lives with her at this address. There is no reference to Sweden. Rather the Respondent states in this document “For several weeks, when I was on vacation with M.X. – the father was informed about the trip, M.X.’s grandmother called every day that she wanted to see her granddaughter when I returned from vacation.” This is entirely contrary to the position averred to by the Respondent that she lived in Sweden from May 2022.

• There are text messages exhibited where the Applicant seeks the bank account details of the Respondent in order to deposit money for M.X.

• The text from the Respondent to the Applicant of the 20th June 2024 is exhibited. The response of the Applicant appears to be to request a bank account number for the transfer of maintenance for M.X.

• A number of travel documents are provided.

(i) Ferry ticket Karlskrona, Sweden to Gdynia, Poland (return) 22nd June 2022 to 26th June 2022 for two adults and one child (all unnamed);

(ii) A partial document dated 23rd July 2022 addressed to the Respondent with an address at [redacted] in Sweden;

(iii) A travel document from Gdansk, Poland to Nynashamn, Sweden dated the 20th January 2023 (tickets in the names of the Respondent, her partner and Z).

(iv) A flight from Gdansk, Poland to Arlanda Airport, Stockholm for the Respondent and M.X. dated 24th May 2022.

(v) A Swedish tax agency document relating to the Respondent and M.X. stamped 7th June 2022 indicating that they are moving from Poland to Sweden for “family relocation”. There is no indication that tax status was achieved and I was informed that it was not due to the Respondent not being in gainful employment.

28. Conclusions: I find that the evidence of the Respondent is inconsistent in relation to her movements at this time. I have concluded that the Respondent moved to a family residence in Poland in September 2021. I have concluded that she continued to have a residence there until she left for Ireland in or about May of 2023. She entered into a new relationship with her partner who was living in Sweden and she spent periods of time with him, bringing M.X. with her, from in or about April 2022 but there is no evidence of her having established a day to day, settled lifestyle in Sweden. It appears from her own application to the court that she vacationed to visit her partner. She did not take up gainful employment there. No document has been exhibited which demonstrates day to day activities consistent with residence. The Applicant seems not to have been informed about these movements (although the evidence of the Respondent in this regard is inconsistent) with access continuing until in or about September 2022 and thereafter the Applicant endeavouring to have access but initially this being obstructed (leading to an application for interim access being brought by him) and ultimately the Respondent not being present in the residence concerned. I so find on the basis of

(i) The address used by the Respondent in divorce proceedings and other court documents;

(ii) The suggestions for access made by the Respondent in the divorce proceedings required that she be living in Poland;

(iii) The absence of reference to her having fled in the Answer filed in February 2023 (his proposals for access likewise required the Respondent to be living in Poland) coupled with the Order of the Polish court in April of that year requiring the Respondent to inform the Applicant of the whereabouts of the child. This indicates that the Applicant believed the child to be residing in the Gdansk residence in February 2023 but that he was seeking information concerning the whereabouts of the child by April 2023 when the matter was in court in Poland;

(iv) The Respondent’s own statement to the Polish court which she exhibits speaks of being on vacation with the child (with no reference to Sweden). She indicates that Applicant is aware of the situation which pertained, a statement entirely at odds with her evidence to the Polish Court in June 2024.

(b) Date of knowledge of second removal

29. While it is agreed that the Applicant had access with M.X. in June and August 2024, by agreement of the parties, the Applicant avers that he only became aware that the child had been again relocated to Ireland without his consent in or about September 2024. In the form filled out for the Polish Central Authority, it is indicated that he became aware of the removal from his lawyer. The Respondent avers that he was so aware at all material times post-June 2024. I have considered the court hearing record of the hearing before the Polish court on the 11th June 2024. There is no reference therein to the Applicant having stated that she was returning to Ireland. She indicated that she was staying at the home of the parents of her partner in Poland and that she would be there until the 21st June. However, it would appear that she did have other accommodation available to her in Poland, being the residence to which she asserts full ownership and in which she previously resided, post-separation of the parties.

30. At the January 2025 hearing, the Respondent stated:

“In June 2024 I went to Ireland again. I said I would return to the country for the divorce proceedings. I wrote to my husband in June that I was leaving.”.

31. No such correspondence was provided to me. The Respondent avers that her return to Poland was by way of temporary visit only (Paragraph 20 First Affidavit – “I returned to Ireland at the end of June 2024 because I was on leave from work.”). There are further averments that the Polish court was informed of details concerning residence in Ireland and her intention to return to Ireland at the June 2024 hearing. The court hearing record does not confirm this. Furthermore, this is entirely contrary to the submissions made to the Irish court on three separate occasions on the basis of which the First Proceedings were struck out.

32. The Respondent had clearly returned to Poland with tickets facilitating a return to Ireland (return 21st June 2024). There is a limited number of text messages included as exhibits in the First Affidavit of the Respondent. The first is the 20th June 2024. This appears to indicate that the Respondent had returned to Poland on a permanent basis, as per the compromise of the Irish proceedings. This message states “She cries and gets angry that she can’t go to Ireland to her friends, school and her room. She gets angry quickly and keeps asking when she’s going to fly to Ireland.” If the visit to Poland in June 2024 was of a temporary, holiday nature only, corresponding with the work holidays of the Respondent, this text makes no sense. It seems to me that this was a request by the Respondent to the Applicant for his consent to return with the child to Ireland. This is clear from the final sentence of the text – “Does this suit you?”. There is no evidence that consent was forthcoming. The second text exhibited was sent from the Respondent to the Applicant on the 17th July 2024. It is clear from this that the child and the Respondent are in Ireland and that a visit to Poland is being planned in August. This indicates that the Respondent had determined to remove M.X. to Ireland, yet again, at some point between the 20th June 2024 and the 17th July 2024. At the hearing herein, I asked the Respondent to clarify how voluntary return was being confirmed before the Irish courts in circumstances in which she returned to Ireland within an extremely short period of time. She informed me that she had sent copies of return tickets to Ireland to her solicitor. While her submissions were opaque, it appeared to be her position that she had not confirmed permanent return but that she had only proffered return tickets showing a return date later in June. This June text message (exhibited by the Respondent)

does not support this submission. It indicates that she knew she was returning voluntarily and permanently (subject to any subsequent ruling of the Polish courts) and she was, in this message, asking the Applicant to agree to her leaving again for Ireland. It would appear that he did not do so and she proceeded to leave to return to Ireland in any event.

33. There is a subsequent text of the 17th July 2024. This text (which I have seen in isolation)

does seem to confirm that M.X. is in Ireland and will be back in Poland in August.

Further texts in July reference mediation but there is no suggestion in any of these communications that the Applicant has consented to a return to Ireland. It then appears that the Applicant asked as to M.X.’s whereabouts in late August and, while the response was unclear, it seems to indicate that she is in Ireland and will be attending access at “a neutral place” shortly thereafter.

34. Conclusions: Having considered all of the evidence, I find that the Respondent agreed to voluntarily return to Poland with M.X. and did so return. This Court was informed (repeatedly) that she had done so. It is clear from her text of the 20th June 2024 that she wished to return to Ireland and raised this with the Applicant. He did not agree and, despite this, she left Poland for Ireland yet again. On balance, I find that the Applicant most likely knew she was in Ireland from July 2024. He may not have been certain of this until September 2024, at which time the second proceedings, being those now under consideration, were set in train. It seems to me that it was the entirely unsuccessful access visit in August 2024 which triggered further action by the Applicant. It would appear that there was some confusion in relation to the date upon which the Respondent would return to Poland under the voluntary return compromise. The Irish Order of the 30th May 2024 refers to a July return. However, the Applicant’s lawyer, addressing the Polish court in June 2024 seems to envisage that the return will be in August 2024. This may explain why the Applicant, being aware in July that the Respondent and M.X. were in Ireland took no steps as he may have believed that she was returning at the time of the agreed August access visit.

35. It should be stated that the text message exhibits included an entirely inappropriate and vulgar message, appearing to be a thread between the Applicant and a third party. This is undated and the context and relevance of it is not deposed to. It is clearly an unfortunate message and one to be discouraged but without further information about the circumstances of it, it is difficult to assess the relevance of it. There would appear to be no reference to this message or vulgar behaviour in the Polish divorce proceedings or the hearings in June 2024 or January 2025.

(c) Behaviour issues

36. Both parties make allegations of poor behaviour against the other. The Respondent asserts that the Applicant consumed alcohol to excess, was an inadequate financial provider and uninvolved father and that he screamed at night causing the child to be afraid. In her First Affidavit she states:

“The reason for moving out was physical violence, psychological violence, lack of financial support, and the Plaintiff’s alcohol problem. The Polish court received notes from the police intervention when A.Z. caused rows and domestic violence under the influence of alcohol.”

37. No exhibits in support of this are offered and I have seen no police documentation in this regard. This averment is considerably different in tone and content to the pleadings of the Respondent in the divorce proceedings. The Applicant admitted that the police were called once during the course of the marriage and attributed this to a row between the parties in the context of the Respondent’s adultery. Police interventions are not highlighted by either party in their divorce pleadings. In his Second Affidavit, the Applicant exhibits a letter written by the Respondent to the Applicant, it would appear, during a period of ill health. The letter is undated. It seems a balanced reflection of the breakdown of a relationship and reflects both parties in a positive light, albeit both having failings in the context of the termination of their relationship. Importantly, it indicates that the Applicant is a good father and that he has addressed his alcohol problems. Further counter-allegations are contained in the Respondent’s Second Affidavit. Again, there is no corroborative material exhibited. There is a very distinct difference between the allegations made by the Respondent in the undated “Application to establish the child’s place of residence with the applicant” and the document initiating the divorce. Unfortunately, this is yet again an instance of inconsistency in the statements of the Respondent who seems to frame and reframe her contentions as suits the situation being addressed and the result she seeks to achieve.

38. As regards M.X., at Paragraph 19 of the First Affidavit of the Respondent she states:

“I declare that after the minor M.X moved out in 2021, I drove M.X. to A.X’s parents’ house until February 2022. The Plaintiff himself never came to pick up his daughter or visited her. After spending time at A.X.’s parents’ house, changes in M.X.’s behaviour were noticeable. Bedwetting, teeth grinding, general anxiety. Constant words that Father screams at night and she cannot sleep at night when she is at A.X’s family home. From March 2022, I started driving M.X. less often and from May 2022, I stopped these contacts and they were sporadic. After the situation on September 25, 2022, when A.X in the present of the child began to be aggressive and call me names, I told him that I was leaving for Ireland to my mother [redacted] with my daughter M.X.”

39. This averment in an Affidavit of the 7th May 2025 is in stark contrast to the divorce pleading filed by the Respondent on the 30th September 2022 which makes no reference to such matters and, indeed, proposes regular, overnight access between child and father, including that he would do collections and returns, contra-indicating alcohol concerns, with no suggestion of any requirement of supervision. It is also in stark contrast to the exhibited letter which appears to date from post-September 2021, the date of separation. It also does not correspond with the Application to establish the child’s place of residence with the Applicant in many material respects. The Second Affidavit of the Respondent alleges, for the first time, that the care of M.X. was, in fact, entrusted to the paternal grandmother and not the Applicant. There is no previous suggestion of this in her First Affidavit in these proceedings.

40. The Applicant asserts that the Respondent sought to prevent him and his parents having contact with the child entirely without reason, that these were and are vindictive acts on her part, that there was infidelity and that she suffered mental health events arising from such relationships and that there were acts of financial dishonesty on her part the fallout from which motivated her movements. He asserts continuing interference with access by the Respondent. Each party denies the allegations of the other. There is little corroborative evidence of these assertions. In this regard, it appears that the Polish court at the June 2024 hearing directed the release of certain of the mother’s medical history from the [redacted] hospital in Gdansk. I was not provided with this.

41. The Respondent avers that the child is fearful of the Applicant and that she is extremely distressed in the context of access events (in person or remote). Reference is made to psychological interventions being required and a psychologist’s report is exhibited. I have considered this report but not without concerns relating to the circumstances of its preparation which I have referenced below. These concerns impact considerably upon the weight to be attached to it. It appears from the report that the writer met with the Respondent and her partner in June 2024 “a meeting was held to obtain initial information about the child, which was attended by R.X. and Mr.

M. Mr. M was invited to the meeting by the psychologist due to the fact that he has been M.X.’s informal guardian for several years and therefore may have valuable observations about M.X.’s functioning in the home environment.” No effort would appear to have been made to involve the Applicant in this process. M.X. would not appear to have been involved until January 2025 – “As of January 19, 2025, M.X participated in three meetings based on psychological counselling.” The report references difficulties which M.X. has with paternal contact but it does not reference any objection to living in Poland.

It must be noted that attendance with such psychologist was not only without the involvement of the Applicant but also without his consent. The efforts of the Respondent to substitute the Applicant in the child’s life with another father figure (her now partner) are most concerning. These efforts would appear to be continuing unabated over a prolonged period. It appears that this effort has expanded to seeking to replace the entire “paternal” family role to that of her partner’s family notwithstanding that it is amply clear that the child lived with her actual paternal family prior to the separation of the parties and had a continuing relationship with them post-separation.

It is clear that the Respondent and her now partner were the instigators, preparers for and accompaniers to the psychological interventions resulting in the report exhibited by the Respondent. The weight to be attached to it must be seen in this context. During the course of the hearing, I endeavoured to address with the Respondent the role of her now partner in this psychological process. She informed me that, while she and her partner brought M.X. to the appointment with the psychologist, he (Mr. M) did not have a role in the process. This is not the position which the exhibited report reveals.

The report states:

• The partner accompanied M.X. and her mother to the appointment(s);

• The initial information meeting was attended by the Respondent and Mr.

M;

• There is no reference to the efforts of the Applicant to continue a relationship with his daughter and no suggestion that he might be interviewed in order to achieve a complete picture of M.X.’s life experience;

• Contrary to the response to my express questions in this regard, the exhibited report states: “Both the mother and Mr. M are involved in M.X.’s therapeutic process.”

42. I will refer to the reports of RMOF below which I consider to be most useful in this regard. In the Official Record of the January 2025 Polish hearing, the Applicant is recorded as saying:

“In August [2024] I saw my daughter for the last time. I did not have the freedom to talk to my daughter. My daughter, in the environment created by her mother and her partner, says that she has a new daddy, M, and new grandparents. There were 3 mediations in Ireland, during which my wife shouted to her daughter that she had no family in Poland.”

43. Paragraph 23 of the First Affidavit is also concerning. It avers:

“In June, M.X. told A.X at one of the meetings that her whole life is in Ireland, that she has school and friends there. After a visit to the family home, M.X.

heard that she would never see me again, that she would never come back to me.”

44. The Respondent’s source of this information is unstated but, presumably, is M.X.

There is an indication of negative discussion between the Respondent and M.X. of her time spent with her father and his family, including post-contact recordings, but, more importantly, there is not corroboration of the concern expressed in the latter part of this averment in the most recent report of RMOF resulting from her interview with M.X.

45. In terms of the averments concerning the misbehaviour of the Applicant, it is difficult to reconcile the subsequent averments in the First Affidavit of the alleged efforts of the Respondent to promote contact, albeit in the context of her remaining in Ireland.

46. Conclusions: Having considered all of the evidence before me, I find that there was a breakdown in the marital relationship of the parties in or about September 2021. There were allegations and counter-allegations made and the truth is probably somewhere in the middle. However, the circumstances of the breakdown of the marriage are not relevant to the issues I have to decide. I must determine if there was misbehaviour at a level relevant to the Article 13 defences in the Convention. There is nothing in the evidence of the parties themselves (even taking the Respondent’s allegations at their height) or in the exhibits to their Affidavits to support misconduct at a level exceeding the normal distress of marital breakdown.

(d) Wishes of child

47. I have no doubt that M.X., aged 7, is expressing strong views about remaining in Ireland. The issue in this case is whether these views have been influenced by others or are the child’s own views. The importance of the voice of the child in decision-making concerning children is without doubt. Article 13 of the Convention expressly recognises this as does the Regulation. However, this must be the authentic and true voice and this must be considered in the context of the maturity of the child. Without strong endorsement of the need for children’s authentic and uninfluenced voices to be heard, we create a charter for parents and other adults to thwart the child’s voice. The Applicant avers alienation of the child from him by the Respondent.

48. The reports of RMOF, the expert assessor, have been of considerable use in this context.

49. The First Affidavit of the Respondent also exhibited the transcripts of certain videos in support of the wishes of the child. The contexts of these transcripts are unclear as the First Affidavit does not link exhibits with averments. The transcripts are undated. The first appears to relate to a birthday so presumably is in May 2025 (the only birthday since the conclusion of the last proceedings). It simply reflects birthday greetings. The second, again undated, reflects a distressed child being comforted. The conversation reflects leading questions and propositions of an inappropriate nature, culminating with “And you don’t want to see him anymore? No, I don’t want to!”. The third is a very small snippet of a conversation indicating that her friends are in Ireland. The final transcript which would appear to be intended to demonstrate that M.X. loves the Respondent and her partner (“I love my Mom and Dad”) and not the Applicant (“Not that other dad” “We know my dear heart”).

50. Conclusions: Having considered the evidence, including the reports of the assessor, I find that the child has expressed a wish not to have contact with her father and, related to this, would has adopted a negative attitude to Poland but that there is strong evidence of lack of independence and influence in this regard. I so conclude from the exhibited transcripts and the reports of RMOF.

(e) Living circumstances of the child

51. The child has been living in the same rented accommodation in Kerry since her arrival in Ireland. Her mother is occupied as a sales assistant and states that this is secure employment. The child has now completed senior infants in her school in Ireland and the Respondent avers that:

“She is doing great at school and with English, which she speaks fluently at school and at home.”

52. Correspondence from teachers is exhibited. Clearly, she is a pleasant and able child and her teachers recognise this. The socialisation of M.X. and her community in Ireland is averred to by the Respondent at Paragraph 11 of her First Affidavit and photographs are exhibited. The Respondent contrasts this with her lack of connection with Poland.

53. The Applicant references her connection with Poland in his Second Affidavit. He references the duration of her life in Poland relative to her age. He references a broad family circle in Poland. The assessments carried out indicate that M.X.’s recollection of such family circle is limited (whether independently or induced by others) and somewhat confused but I formed the distinct view that M.X.’s integration in her community in Ireland is very constrained and her family and social circle very limited.

This is discussed further below in the context of the expert assessment reports available to me.

54. I have analysed these matters in the context of the consideration of M.X.’s habitual residence below.

EXPERT ASSESSMENT

55. Unusually for summary proceedings such as the present, I have had the benefit of three reports prepared by RMOF, the first two in the context of the first proceedings and the third in the context of these proceedings. These reports are comprehensive, informative and focussed. Permission was granted to use the earlier reports in the context of the present proceedings by Order of this Court (O’Donnell J.) of the 18th June 2025. The reports are of use in the context of two separate issues:

a. the wishes of the child and her maturity, capacity and independence in the context of expressing such wishes.

b. the narrative of the child in relation to her life in Ireland and the degree to which she has developed her personal community in Ireland and has or has not integrated into life in Ireland.

56. I have considered the reports with both of these perspectives in mind.

First report (9th November 2023):

57. M.X. was aged 5 years and 5 months. She had limited narrative about her life in Poland and referenced living in Sweden. She referenced being “happy” in Poland.

While stating that her “different daddy” was angry, she stated that she never felt scared in Poland. She appeared to have a recollection of attending school in Poland (this was a kindergarten). When asked about extended family, she referenced relatives all of whom appeared to live in Poland. There was reference to three named friends and her teacher. Overall, her community seems to consist of the persons with whom she lives (her mother and her mother’s partner). It must be remembered, however, that at the time of this assessment, M.X. had been in school only two months. The assessor concluded that M.X.’s opinions are likely derived from “received information”.

Second report (27th May 2024):

58. As with the first report, M.X. attended for this interview accompanied by her mother and mother’s partner. When asked who was with her, M.X. acknowledged the presence of her mother but insisted (falsely) that she was not accompanied by anyone else. She did not know the name of her school. She named her teacher but was not comprehensively descriptive about school activities. She named three friends, one of whom she spoke Polish with. She said she had no friends where she lived. She seemed to have minimal social interactions with other children outside of school. Again, her social grouping seemed to be limited to her mum and her mum’s partner. She referenced an extra-curricular activity (dance) at school but did not seem to have such activities outside of school, only sometimes going swimming with her “dad” (the Respondent’s partner). She reported attending church with her mum and “dad”. There appeared to be a birthday party. Again, remoter relatives referenced appeared to be in Poland. Surprisingly, she stated that her mother and father did not have parents. It is my understanding that her maternal grandmother resides in Ireland but this was not referenced. There was no reference to paternal grandparents notwithstanding that she had lived with them until she was 3 and a half and continued to visit them for a year thereafter. She expressed considerable negativity about the Applicant. M.X. spoke Polish for the interview and an interpreter was engaged. The interpreter informed the assessor that some Polish words were used out of context. M.X. now appears to have reasonable English. The assessor concluded:

51. At six years old and having experienced a lot of change in her short life, M.X. is susceptible to adopting the views and opinions of others, and particularly those on whom she relies for care.

52. M.X. demonstrated limited ability to express independently formed views about neutral or emotionally laden topics.”

59. The assessor opined that M.X. had adopted her mother’s position. She concluded:

“55. In my opinion, M.X. is likely rehearsing information she has received from others, rather than her own lived experiences.”

60. Of significance in relation to the issue of her sense of community, the assessor concluded:

“56. M.X.’s description of life in Ireland indicates, that her significant relationships are with her mother and step father; her friendships are all school based; she provides no descriptive narrative about her teacher, school or neighbourhood; she is not engaged in any extra curricular activities and has no caregivers other than her mother and step father.”

61. Overall, there is a sense of a somewhat isolated existence in the report.

Third report (30th June 2025):

62. Again, M.X. was accompanied to the interview by her mother and her mother’s partner (who introduced himself to the assessor as M.X.’s dad). Again, the interview was assisted by a Polish interpreter. M.X. recalled living in Poland as a small child. M.X.

was negative about her father and his parents. She expressed negativity towards Poland which was irrational and exaggerated – no friends “because they do not like me”; “no school in Poland”; “no playgrounds in Poland”. She expressed the weather in Ireland to be better than in Poland. She was unable to name where she lived in Ireland or her school although she did name her teacher and stated that she has lots of friends in school. There was reference to her maternal grandmother who lives in Ireland. Social isolation was again obvious. Care came from her mother, her maternal grandmother or her “dad”. Her expressed view that she did not wish to return to Poland all seemed to be linked to negativity towards the Applicant. Negativity was also expressed towards her paternal grandparents. Remoter relatives were Poland-based. M.X. expressed the wish to conduct the interview in Polish although she apparently speaks English and her Polish grammar was reported to be poor by the interpreter. The assessor found M.X.

“unable to express any opinion about emotionally neutral topics.” She opined:

“58. M.X.’s opinions about Poland were extreme and lacking nuance; there is nothing positive about Poland from the schools, to the playgrounds, to the food and weather.”

63. She states that M.X.’s objection to returning to live in Poland relates “entirely” to having contact with her father.

64. The assessor then considered independence. It appears that the Respondent and her partner had prepared her for the interview. Concerningly, at paragraph 66, it is recorded that the child stated:

“66. She said: “Mum and dad said if I behave myself that when I come here to be safe because he doesn’t like Ireland” M.X. noted: “When I tell everything right today, we are going to go to buy a hamster toy.””

65. Testing of views expressed appeared to result in very confused narrative. The observations of the assessor were that M.X. found it difficult to communicate either in English or in Polish; she was unable to answer either open or direct questions; she was unable to provide a linear narrative about emotionally laden or emotionally neutral topics. Emphatic opinions about matters in respect of which she expressed negativity “were not amenable to gentle exploration or testing.” Overall, the impression from the report is of a child who feels the burden of a message to be conveyed and is afraid to wander from the narrative path prescribed to be followed. The conclusion reached by the professional assessor was:

“72. In my opinion it is probable that what M.X said in interview with me was received from others; her emphatic opinions and reported experiences, lacked nuance, idiosyncratic or contextual information and were not amenable to gentle challenge.”

66. There is little beyond generalities expressed in relation to social circumstances and community. There was a reference to “lots of friends” but none were named. There is little reference to school life, extra-curricular activities or involvement with third parties outside of immediate family. It is difficult to conclude whether this was due to her focus on a particular narrative negative to Poland and her father and his family or whether it was due to her life in Ireland remaining quite isolated. There is no sense of meaningful integration in Irish life, beyond what is to be expected from school attendance, in the report. This is particularly unusual given that she is now older and should be capable of greater articulation and given that she has now been in Ireland for a period of longer duration.

SUBMISSIONS OF THE PARTIES

67. The Applicant submits that M.X. was habitually resident in Poland at the date of her first removal to Ireland in May 2022. In support of this, reliance is placed upon the institution of divorce proceedings in Poland in September 2022 and the address (Polish)

used by the Respondent in that context. The Applicant references his lack of consent to the removal of the child from Poland, either to Ireland or Sweden. The Applicant references the voluntary return of M.X. to Poland in June 2024. The submissions reference an order being made on consent of the parties directing the return of M.X. to Poland. It must be stated that a review of the Court orders made in that context do not show an Order for return ever being made. The return was a voluntary one. The Applicant asserts a second wrongful removal of M.X. from Poland to Ireland in June 2024, approximately one week after the voluntary return. Reference is made to the access enjoyed by the Applicant during this period in Poland. The chronology of the current proceedings is set out.

68. The Applicant asserts that M.X. remained habitually resident in Poland at the date of her second removal to Ireland (June 2024). Reliance is placed upon D.E. v E.B. [2015] IECA 104 (Finlay Geoghegan J.) and Hampshire County Council v. E [2020] IECA

100 (Whelan J.). The Applicant asserts that, as of the summer of 2024, he enjoyed rights of custody and was exercising same. In respect of the latter, reliance is placed upon the liberal approach to exercise of rights of custody endorsed by Finlay Geoghegan J. in M.J.T. v. CC [2014] IEHC 196. Specific reference is made to paragraph 29 of the judgment which states:

“29. The authorities to which I refer simply require him to show that he kept or sought to keep regular contact or a relationship with his child. There is no evidence he did this during the three years prior to Sue’s removal from England. In circumstances where the applicant was living in the same country as Sue, the payment of maintenance through CSA does not in my judgment suffice. In the words of Lord Brandon in Re H he was not maintaining the stance and attitude of a custodial parent. The definition in Article 5 of the Convention of rights of custody as including ‘care of the person of the child’ [emphasis added] underlines the requirement for personal contact or seeking to maintain contact or a relationship as part of the exercise of rights of custody. There may, of course, be factual situations where there is evidence that personal contact is precluded by court order or other reason, despite attempts made. There is no such evidence here.”

69. The submissions of the Applicant considered a number of Article 13 Defences. These included Acquiescence, Delay and Consent. None of these defences was pressed by the Respondent at hearing. The factual circumstances pertaining in the present instance do not support these defences. The submissions of the Applicant set out the applicable law in respect of them and submits that the factual circumstances of the present case are such that they do not arise. In respect of delay, reference is made to D.M. v. V.K.

[2022] IECA 207 (Donnelly J.). The Applicant submits that any delay in this case is not such as amounts to acquiescence on his part and is not so egregious of a delay as would justify a refusal to return M.X. to Poland.

70. It is my view that, at the hearing herein and in the submissions of the Respondent, two substantive defences are referenced namely the wishes of the child and grave risk. In relation to the former, the Applicant references the decision of Finlay Geoghan J. in M.S. v. A.R. [2019] IESC 10 where the three stage test applied by the English Court of Appeal in Re M (Abduction: Child’s Objections) [2007] EWCA Civ 260 was endorsed. The application of the three stage test in the context of the factual circumstances of the present case is addressed with focus on the relatively young age of the child. The wish articulated by the child not to return to Poland is acknowledged, the concerns of the assessor in relation to received information and communication deficits are referenced. On these bases, it is submitted that the objections are not well made out and less weight should be attached to them. The written submissions of the Applicant did not address grave risk but, orally at hearing, the Applicant submitted that the conduct issues raised herein did not reach the standard required to result in a successful invocation of the Article 13 defence in this regard.

71. The issue of settlement is then addressed. The Applicant submits that settlement is only relevant if a period in excess of one year has elapsed between the removal and the commencement of proceedings and that this is not the position here. The weight to be given to circumstances of concealment and subterfuge and the authorities in this regard are referenced.

72. The Respondent is a litigant in person. It must be acknowledged that the legal complexities arising in cases concerning child abduction present very particular challenges for such litigants. Perhaps understandably, the focus adopted is often one more suited to the substantive hearing in respect of child arrangements. The focus of proceedings such as these is very different. These are proceedings brought in the context of a structured and confined legislative framework with a focus upon restoring a status quo where a child is wrongfully removed or retained from their place of habitual residence and, to some degree, in consequence, assisting the determination of the substantive dispute in the appropriate jurisdiction. The Respondent’s submissions are factually based. She submits she moved with M.X. to Sweden in May 2022. She submits that M.X. was living in Sweden from May 2022 until her removal to Ireland in May 2023. She asserts that the Applicant had an alcohol problem, was aggressive and failed in financial support. She references her request to limit his parental authority.

She references that she was not present at the April 2023 hearing. However, for the first time, annexed to the submissions, there is a document dated 31st March 2023 (the Respondent refers to the 23rd March 2023 and there is a handwritten note on the attachment which indicates the 29th March 2023. I do not think much turns on this as all of these dates precede the date of the court application) which seems to relate to the hearing then forthcoming. The document annexed to the submissions appears to be the Respondent’s response to the application of the 21st April 2023 at which she did not appear. Allegations of irresponsibility, alcohol abuse, lack of involvement and threats not to return the child are made. Objection by the child is also referenced. This form would appear to have been submitted by the Respondent’s then lawyer. No explanation is provided as to why she did not appear or was not represented at that this hearing.

73. The Respondent submits that she returned to Poland after the Irish court decision in the First Proceedings and that she left thereafter due to the child being upset following meetings with the Applicant. It is somewhat unsatisfactory that these factual assertions were made by way of submission and not on affidavit both as to their evidential weight in such context and also in terms of the Applicant not having an opportunity to reply. I must, however, have regard to the fact that the Respondent had waived his access entitlements under the Polish court orders as a condition of the voluntary return subject to early review by the Polish court and therefore access, post-return, was by way of agreement.

74. The issue of habitual residence is not addressed in the Respondent’s submissions. She references “the rules for the return of a Child to the Country where it was born” which obviously is not the applicable proof. There is then reference to “serious risk” which I have considered in the light of the grave risk defence under the Convention. There is also a reference to “when the child’s stay exceeds 1 year” which I have considered in the context of the settlement issue under Article 12. The submissions in relation to these matters are factual, repeating her averments in the affidavits filed by her. The Respondent acknowledges that she asked for the Applicant’s agreement in June 2024 to return to Ireland. There is no suggestion that such consent was forthcoming. The Respondent asserts that the Applicant is motivated by vindictiveness and that the welfare of the child is best served in Ireland.

REQUIRED PROOFS AND DEFENCES

75. The Applicant is required to prove:

I. That the removal or retention of M.X. from Poland was wrongful in accordance with the provisions of Article 3 of the Convention. This requires:

(a) That M.X. was habitually resident in Poland immediately prior to the removal or retention;

(b) That the Applicant had rights of custody in that country immediately prior to such removal or retention; and

(c) That such rights of custody were being exercised by the Applicant at the time of such removal or retention or would have been so exercised but for the removal or retention.

II. There is a limited number of defences available under the Convention, the burden of proving which defences lies with the Respondent. As previously stated, one of the difficult issues in this case is that the Respondent was a litigant in person and was therefore endeavouring to address a very complex area of law. It is understandable that the defences arising in cases such as the present are confused with the widely applied standards of welfare and best interests which arise in the context of substantive parental responsibility/child arrangements applications. This is not such an application. This is an application which is focussed on the restoration of the status quo in terms of habitual residence and on the appropriate jurisdiction to determine a substantive application relating to the child concerned. I will consider the role of welfare and best interests in the context of applications such as the present below. The first issue to be addressed, however, once the Applicant has satisfied the proofs at 1 above, is whether there are any defences arising under Article 13 of the Convention? In this case, the following defences would appear to arise based upon the submissions of the Respondent:

(a) The objection of M.X. to being returned to Poland and whether she has attained an age and degree of maturity at which it is appropriate to take account of her views;

(b) Is there a grave risk that the return would expose M.X. to physical or psychological harm or otherwise place her in an intolerable situation?

(c) I do not consider it necessary to consider the exercise of custody rights at the time of wrongful removal/retention (as provided for in Article 13 a) in view of the consideration which I have given to this matter pursuant to the provisions of Article 3 b), referenced at 1(c)

above.

(d) If the evidence before me supports any of these defences, I must then consider the exercise of my discretion in relation to them. The Article

13 defences are such as result in a court not being bound to order or not order the return but rather having a discretion in this regard.

III. One other issue that arises is the issue of settlement. Article 12 mandates a return “forthwith” where less than one year has elapsed from the date of the wrongful removal or retention and the date of the commencement of proceedings (here the 20th January 2025). The Article continues on to state that where proceedings commenced after the expiration of one year from the date of wrongful removal or retention, a return should nevertheless be ordered “unless it is demonstrated that the child is now settled in its new environment.” The main focus of the submissions of the Respondent referenced the very significant degree to which the child was settled in Ireland. In this regard, I must consider and determine two matters:

(a) What was the date of wrongful removal or retention?

(b) If in excess of one year prior to the institution of these proceedings, does the evidence demonstrate M.X. as being settled in her new environment?

76. In conclusion, I will consider the role and weight to be given to the welfare and best interests of the child in the context of child abduction proceedings under the legislative regime engaged in this instance. THE LAW AND ANALYSIS OF LEGAL PRINCIPLES IN THE CURRENT CIRCUMSTANCES

77. The legal framework within which the Convention operates has, most recently, been clearly articulated by Hyland J. in Z v S [2025] IECA 141 where she states:

“Legal Framework

8. The primary aim of the Hague Convention is set out in Article 1:

“(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State;

and,

(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”

9. As explained in Corrigan, “The Law of Child Abduction in Ireland”, Clarus Press, 2025, the scheme of the Convention is, first, to consider whether the removal or retention of the child comes within the Convention, which involves a consideration of the habitual residence of the child immediately before the date of the alleged wrongful removal/retention; second, to consider certain formal proofs, namely, if the applicant had rights of custody to the child, whether the removal/retention was in breach of those rights and whether the proceedings seeking return were commenced within one year of the removal/retention and, third, to consider exceptions, including those the subject of this appeal, i.e. whether the parent seeking return had consented to or subsequently acquiesced in the removal/retention per Article 13, and whether the child was settled in the environment if the proceedings had been commenced more than one year from the date of the removal/retention (as is the case here). Part of the rationale for the regime established by the Convention, as noted by O’Donnell J. (as he then was) in Nottinghamshire County Council v KB [2013] 4 IR 662, is that decisions on the future care and custody of children are best made by the courts of their habitual residence.”

78. One of the first matters which I must determine in these proceedings is the date of abduction. This is of central importance in the application of Article 3 of the Convention in determining the issue of wrongful removal. The Special Summons references a wrongful retention from in or around August 2024. The First Affidavit avers that the child was taken from Poland without his consent in June 2024. It says that the child was again brought to Poland in August 2024 and, thereafter, again removed without his consent. He deposes to becoming aware of this in or around September 2024. As previously opined, this may have been due to confusion as to the proposed date of return in the context of the compromise of the first proceedings. The First Affidavit of the Respondent states that she went to Poland for a divorce hearing in June 2024. She says she returned to Ireland at the end of June 2024 because she was on leave from work. There is no reference to the previous abduction proceedings or the compromise thereof. In the submissions of the Respondent, however, she states that she returned to Poland “After the decision of the Honourable Court, file number 2023/25 HLC” (the first proceedings). She indicates that she left in June for Ireland while denying that this was “without informing and directing questions to” the Applicant. There is no suggestion that he consented to M.X. leaving for Ireland. On a consideration of all of the evidence before me and the submissions received, I conclude that M.X. was removed from Poland in June 2024. I must now consider where M.X.

was habitually resident on that date.

Habitual Residence

79. It is generally considered that the habitual residence of a child in the context of child abduction proceedings is a question of fact to be decided by reference to all the circumstances of a particular case. As is stated by Whelan J. in L.O. v. M.O. [2024] IECA 39 at paragraph 33 - 34:

“33. Where, as here, there is a disagreement between the parties as to whether an existing habitual residence has continued or has recently changed, the burden of proof shifts to the respondent who is asserting such a change to demonstrate that it has occurred. In reaching its decision, the court should look at the evidence as a whole, a task which is increasingly challenging in the era of social media and electronic communications, as both the English Court of Appeal and the Supreme Court of the United Kingdom have observed in recent decisions, including in Re C (Children) [2017] EWCA Civ 980, [2018]

1 FLR 186 at para. 161, a view shared by Lord Hughes on appeal [2018] UKSC 8, [2019] AC 1 at para. 48.

34. Hence, the first step is to locate the earliest date at which, based on the most contemporaneous and reliable evidence adduced before the High Court, it could be said that the retention of the children in Ireland against the wishes of the father occurred. The issue of habitual residence as of that date is to be determined in accordance with the laws of this State as the requested state and in that regard “habitual residence” has an autonomous rather than a domestic law meaning.”

80. Clear guidance in relation to the interpretation of habitual residence in the current context may be found in the decision of the CJEU in C v. M Case C-376/14PPU (9th October 2014). The Court, referencing Mercredi Case C-497/10PPU [2010] ECR 1- 14309, stated at paragraph 52:

“The Court explained that, to that end, account must be taken of, inter alia, the duration, regularity, conditions and reasons for the stay in the territory of a Member State and for the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State (judgments in A, EU:C:2009:225, paragraphs 39 and 44, and Mercredi, EU:C:2010:829, paragraphs 48, 49 and 56). The Court also held that the intention of the parents or one of them to settle permanently with the child in another Member State, manifested by certain tangible steps such as the purchase or lease of a residence in that Member State, may constitute an indicator of the transfer of the child’s habitual residence (see the judgments in A, EU:C:2009:225, paragraphs 40 and 44, and Mercredi, EU:C:2010:829, paragraph 50).”

81. It then ruled: “ … it is the task of the court of the Member State to which the child has been removed, when seised of an application for return on the basis of the 1980 Hague Convention and Article 11 of the Regulation, to determine whether the child was habitually resident in the Member State of origin immediately before the alleged wrongful removal or retention, taking into account all the circumstances of fact specific to the individual case, using the assessment criteria provided in those judgments.

55 When examining in particular the reasons for the child’s stay in the Member State to which the child was removed and the intention of the parent who took the child there, it is important, in circumstances such as those of the main proceedings, to take into account the fact that the court judgment authorising the removal could be provisionally enforced and that an appeal had been brought against it. Those factors are not conducive to a finding that the child’s habitual residence was transferred, since that judgment was provisional and the parent concerned could not be certain, at the time of the removal, that the stay in that Member State would not be temporary.

56 Having regard to the necessity of ensuring the protection of the best interests of the child, those factors are, as part of the assessment of all the circumstances of fact specific to the individual case, to be weighed against other matters of fact which might demonstrate a degree of integration of the child in a social and family environment since her removal, such as those mentioned in paragraph 52 of this judgment and, in particular, the time which elapsed between that removal and the judgment which set aside the judgment of first instance and fixed the residence of the child at the home of the parent living in the Member State of origin. However, the time which has passed since that judgment should not in any circumstances be taken into consideration.”

82. The correct approach to considering the issue of habitual residence has been considered in a number of decisions in this jurisdiction. I will reference but some of the most important of these. In D.E. v. E.B. [2015] IECA 104, Finlay Geoghegan J., having considered a number of decisions of the CJEU, stated: “31 In my view, the CJEU in paras. 55–57 of its judgment in C. v. M. makes it clear that, where a national court is determining habitual residence for the purposes of Article 2(11) of the Regulation, part of its assessment of ‘all the circumstances of fact specific to the individual case’ must include the conditions under which the child moved and reasons for the child’s stay in the Member State to which it has been removed. On the facts of C. v. M. the relevant conditions and reasons which the CJEU identified were the court judgment authorising the removal, albeit one which could be provisionally enforced and the fact that it had been appealed against. In assessing the move by the mother of N from France to Ireland the conditions and reasons under which the move happened were that the father, who holds parental authority and rights of custody, gave consent to the child travelling to Ireland only for visits of limited duration during what he believed to be the mother’s parental leave from her French employment and did not give consent to a change of ordinary residence of N. The CJEU in para. 56 of its judgment in that case makes clear that such factors are to be ‘weighed against other matters of fact which might demonstrate a degree of integration of the child in a social and family environment since her removal such as those mentioned in para. 52 of this judgment …’.

32 Accordingly, in my judgement, counsel for the mother is not correct in her submission that when a national court such as the High Court is assessing ‘all the circumstances of fact specific to the individual case’ an overriding consideration must be as to where in fact the centre of interests of the child at the relevant time lies, in particular by reference to her integration in a social and family environment in the Member State to which she has been removed and in which she is living at the relevant time for the assessment. It is rather the case that, as appears from the judgment of the CJEU in C. v. M, all of the relevant factors must be taken into consideration, including of course the centre of interests of the child at the relevant time and where relevant, one weighed against the other. The reasons for the child’s move and conditions under which she came to be in the second Member State are also relevant factors. In a case such as the present — where both parents hold parental responsibility and each have a right to participate in a decision as to where a child should live — a consent given for a visit of limited duration or, to put it another way, the absence of a consent to a change in the habitual residence is a factor to be taken into account and weighed against other relevant factors. It does not appear to me that the judgments of the CJEU when considered collectively in the context of the relevant features of each case identify that any one or more competing factors should be given an overriding consideration. The weight to be attached to each will depend on the facts of the individual case. Differing considerations will apply depending on all the different factors identified by CJEU.

33 It is accordingly clear from the case-law of the CJEU that a court should properly take into account as a factor the absence of consent of one parent who holds parental responsibility to a move of the habitual or ordinary residence of the child to another Member State. It follows that the court must weigh that factor against other relevant matters of fact identified which — as the CJEU put it in C. v. M.— might demonstrate a degree of integration of the child in a social and family environment in the State to which she has moved. Those latter facts may include the intention of the other parent to settle permanently with the child in the other Member State as manifested by steps taken and all the other potential factors identified by CJEU in paras 50–53 of C v.M. The question of parental authority may be of particular relevance to an assessment of the intention of the other parent who may wish to settle permanently with the child in the new Member State but may not be in a position to make that decision unilaterally if the other parent also holds parental authority.

34 If it were otherwise it could set at nought the entire concept of wrongful retention. In all cases of alleged wrongful retention, the child will have spent time in the Member State to which it has moved. It is of the essence of wrongful retention, as distinct from wrongful removal, that the child moved lawfully from its Member State of habitual residence to another State but has not returned at the end of the period for which the permission or consent was given. Wrongful retention will only arise if at the end of the permitted period the child remains habitually resident in its State of origin. Unless a court may give appropriate weight to the conditions and permissions under which or reasons for which the child moved together with all other relevant identified factors in assessing habitual residence it is difficult to envisage wrongful retention as a concept surviving.” [Emphasis added]

83. Habitual residence was further considered by the Court of Appeal (Whelan J.) in Hampshire County Council v. E [2020] IECA 100 where a most useful list of relevant factors was enunciated:

““…all the circumstances specific to the individual case…”

77. With respect to the specific circumstances which may be relevant in a given case, the cases including A and Mercredi and subsequent decisions of the CJEU, some of which were considered and analysed by the UK Supreme Court in the case of In re B. (A Child) [2016] UKSC 4, [2016] A.C. 606, suggest the following non-exhaustive list of considerations, factors and circumstances may be relevant in a given case and are considered to be principles of general application:

(i) Neither Regulation No. 2201/2003 nor the 1980 Hague Convention defines the concept of habitual residence. The CJEU in its jurisprudence has developed a multi factorial or hybrid approach to establishing a child’s habitual residence.

(ii) It is the child's habitual residence which is in question, not the parents’, and it is the child's level of integration, rather than the parents’, in a social and family environment which must be analysed by the court determining the question.

(iii) In common with the other rules of jurisdiction, the meaning of “habitual residence” is shaped in the light of the best interests of the child and in particular on the criterion of proximity. Proximity in this context means the practical connection between the child and the country concerned.

(iv) The duration, regularity and conditions for the stay of the child in the country where it is claimed habitual residence has been acquired must be examined.

(v) The relevant question is whether a child has achieved some degree of integration in a social and family environment. It is not necessary for a child to be fully integrated before becoming habitually resident.

(vi) Parental intention is but one relevant factor in the assessment. It is not determinative. Hague Convention decisions which considered parental intention to be of pre-eminent importance are no longer good law. There is no requirement that there be an intention on the part of one or both parents to reside in the country in question permanently or indefinitely. The purposes and intentions of the parents are merely one of the relevant factors. This point was pivotal in the decision of the CJEU in O.L. v. P.Q.

(vii) The court should consider the reasons for the parents’ move to and the stay in the jurisdiction in question.

(viii) The child's nationality is relevant.

(ix) In evaluating whether a child has lost a pre-existing habitual residence and gained a new one, the court must weigh up and assess the degree of connection which the child had with the State in which she resided before the move.

(x) The history of attendance at school, kindergarten and education generally is relevant.

(xi) The child's linguistic knowledge.

(xii) The family and social relationships of the child.

(xiii) Whether possessions were brought, whether there is a right of abode and the nature and extent of durable ties with the new country of residence.

(xiv) It is the quality of the stability of a child's residence as opposed to its permanence which is relevant in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there.

(xv) In respect of a pre-school child, the circumstances to be considered will include the geographic and family origins of the parent or parents who effected the move.

(xvi) In In Re B. (A Child) Lord Wilson noted as follows at para. 45:-

“…The concept operates in the expectation that, when a child gains a new habitual residence, he loses his old one. Simple analogies are best:

consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child's roots in that of the old state to the point at which he achieves the requisite deintegration (or, better, disengagement) from it.”

(xvii) The requisite degree of integration can, in certain circumstances, develop quite quickly. It is possible to acquire a new habitual residence in a single day. There is no requirement that the child should have been resident in the country in question for a particular period of time. The deeper the child's integration in the old state, probably the less fast his or her achievement of the requisite degree of integration in the new state.

(xviii) Likewise, the greater the amount of adult pre-planning of the move, including prearrangements for the child's day-to-day life in the new country, probably the faster his or her achievement of that requisite degree of integration.

(xix) In circumstances where all of the central members of the child's life in the original state have moved with him or her, probably the faster his or her achievement of habitual residence. Conversely, where any of the central family members have remained behind and thus represent for the child a continuing link with the original state, probably the less fast his or her achievement of habitual residence.

(xx) A child will usually, but not necessarily, have the same habitual residence as the parent(s) who care for him. The younger the child the more likely that proposition but this is not to eclipse the fact that the investigation is child focused and fact based.

(xxi) In circumstances where the social and family environment of a new-born or infant is shared with those on whom he is dependent, it is necessary to assess the integration of that person or persons (usually the parent or parents)

in the social and family environment of the country concerned.”

84. The interpretation of this term in the present context is further assisted by the dicta of Murray J. in AK v. US [2022] IECA 65 which state:

“39. In interpreting the phrase, primacy must be given to the ordinary meaning of the two words comprised within it. Put most simply, a person is habitually resident where they live, where their stable home for the time being is located, where their social and family life is and where they are integrated into an identified environment (see Re R [2015] UKSC 35, [2016] AC 76 at para. 23). These are concepts that are universally - 27 - understood and widely applied by ordinary people in their everyday lives. They should not in the vast majority of cases give rise to any difficulty of identification or analysis.

40. The location of a person’s habitual residence – as with that of their home – can change, they can be so resident there for a long or short period of time, and while their presence must have a degree of stability it may at the same time be contingent insofar as they may anticipate that it may change in certain eventualities. Thus, the practical focus in ascertaining where a person is habitually resident is upon where they have put down roots, whether they have established social relationships in a location, where their wider family life is centred and where they work or, if they are children, attend school. It is a fact sensitive inquiry, and therefore must in any case be conducted by reference to all the circumstances of a case and in the case of a child – particularly a very young child – it will obviously be affected by the location of the habitual residence of his or her primary carer.

41. All of this explains why the term is used in the Hague Convention, while the context and purpose of that Convention suggests how it should be specifically applied in cases brought pursuant to its provisions. Underlying the Convention is the calculation that the best interests of children are generally served by decisions regarding their welfare being made in the jurisdiction in which the children have their home and that unilateral attempts to remove children from that jurisdiction should be discouraged. Thus, it is a ‘fundamental animating principle’ of the Convention that factual disputes about the care and welfare of children are best resolved where the children have their habitual residence and thus where the connections relevant to that inquiry are located (CT v. PS [2021] IECA 132 at para. 61 per Collins J.).

The trial judge expressed the position well: the Hague Convention, she said, is a blunt, emergency instrument to make sure that the relevant court decides welfare issues in the best interests of the relevant children (at para. 8.2). It is for that reason that the central inquiry when identifying the habitual residence of a child is directed to his or her integration into both family and society and to that extent the degree to which he or she has mixed with or become absorbed into a community moderating their way of life, habits and customs accordingly. It is thus that the jurisdiction most closely connected with the factors relevant to the care and welfare of the child is identified. That gives effect to the purpose of the Convention and, to bring the matter back full circle, explains why the draftsman chose habitual residence as the centrepiece of the power to direct repatriation provided for by Article 12.

42. It is for these reasons that at the heart of the case law in interpreting the term habitual residence lie concepts of stability, of proximity to the place in question and of social and familial integration: repeatedly courts across many jurisdictions state that in order to be habitually resident in a place, the child’s location there must reflect some degree of integration in a social and family environment, and with equal regularity it is stressed that the determination of whether there is such integration must be conducted in the light of all circumstances specific to the individual case (see in particular Mercredi v.

Chaffe (Case C-497/10 PPU [2010] ECR I-14309, ECLI:EU:C:2010:829).”

85. Applying these principles in the current instance, the child was habitually resident in Poland without doubt until September 2022. I find that the evidence does not support a change of habitual residence to Sweden. The evidence adduced by the Respondent in respect of an asserted residence in Sweden is unsatisfactory and inconsistent, at times being referenced as residence and at times as a vacation. There is sparse evidence of settlement in Sweden or of establishing a community there. I was informed that the application for tax registration was not completed and that the Respondent was not gainfully employed in Sweden during the period asserted. At all times, there was accommodation available in Poland. There is some evidence, from the Applicant, that the Respondent continued in occupation of those premises after the cessation of access in September 2022. Polish proceedings were instituted by the Respondent in September 2022 and she indicated her Polish residential address, and no other, in those proceedings.

Importantly in my view, she suggested access arrangements in her pleadings in those proceedings consistent with living in Poland. I have concluded that it is likely that the Respondent’s new partner was in Sweden and she visited him there, bringing M.X. with her, but I do not find the evidence supportive of any change of residence or habitual residence. While there is some inconsistency in the evidence adduced, I find that there was no information provided to the Applicant, the father of child, relating to the Respondent’s movements with the child at this time. I find that he was not aware of same and did not consent to same. While it must be remembered that the first proceedings were not the subject of judicial determination, it cannot be overlooked that, in the context of such proceedings, the continued habitual residence of the child in Poland as of April/May 2023 being an integral part of them, the Respondent agreed to a voluntary return to Poland. However, it is not necessary for me to make any definitive determination in this regard as the relevant date for these proceedings is June 2024.

86. Where was M.X habitually resident as of that date?

87. I must now consider how the hybrid approach is to be applied in this case in determining the habitual residence of M.X. in June 2024. M.X., her mother, her father, her mother’s partner and all her relatives would appear to be Polish nationals. Her father and paternal grandparents, with whom she resided until September 2021 and who were engaged with her until September 2022 with attempted continuation of such engagement thereafter, are Polish and have resided there at all material times. Her maternal grandmother lives in Ireland although I know little of her circumstances. I have no information concerning her maternal grandfather. The Applicant avers to numerous remoter relatives in Poland.

In relation to the matter of integration, M.X. was attending primary school in Ireland during the academic year 2023/2024 (albeit that she had completed Junior Infants and was commencing summer holidays at the time under consideration). It is clear that she was not attending school for a period in June 2024 when she was travelling to Poland with her mother in the context of her return to that place pursuant to the compromise of the first proceedings. During this sojourn in Poland she was staying with the parents of her mother’s partner who she would appear to view in a grandparental-type role.

88. She had been in Ireland since May of 2023 but for eleven of those thirteen months her presence was in the context of ongoing child abduction proceedings (the first proceedings having issued on the 31st July 2023 and the Order restraining M.X.’s removal from Ireland in the context of those proceedings not being vacated until the 11th June 2024).

The Affidavits of the Respondent in these proceedings are not of great assistance in determining M.X.’s habitual residence as of the date of removal for the purposes of these proceedings as they do not disclose in any detail the integration of the child as of June 2024. The first Affidavit sworn in these proceedings was in May 2025, almost one year later, and many of the averments therein are not time specific. M.X. had commenced school in Ireland in September 2023 while the child abduction proceedings were ongoing.

Her mother was in employment and they lived in rented accommodation. I have little more detail from the affidavits. I have concluded that the evidence most contemporaneous to the date which I must consider is to be found in the Second Report of the assessor dated the 27th May 2024 based upon an interview with M.X. on the 24th May 2024 (less than a month before the second removal from Poland). In the context of this interview, she did not know the name of her school. She named her teacher but was not comprehensively descriptive about school activities. She named three friends, one of whom she spoke Polish with. She said she did not have friends outside school and she had no friends where she lived. She seemed to have minimal social interactions with other children outside of school. Her social grouping seemed to be limited to her mum and her mum’s partner stating “when I’m not at school, I’m at work with my dad”. She referenced an extra-curricular activity (dance) at school but did not seem to have such activities outside of school, only sometimes going swimming with her “dad” (the Respondent’s partner). She had never been to the cinema. She reported attending church with her mum and “dad”. There appeared to be a birthday party of another child which she attended but she did not appear to have had a birthday party herself (it should be stated that this interview was just two and a half weeks after M.X.’s sixth birthday).

Again, remoter relatives referenced appeared to be in Poland. Surprisingly, she stated that her mother and father did not have parents. It is my understanding that her maternal grandmother resides in Ireland but this was not referenced. There was no reference to paternal grandparents notwithstanding the undisputed time spent with them when she was younger, particularly with her paternal grandmother.

89. Other than attending school, she seems to have had little proximity with Ireland. Her language of choice (for all assessment interviews) was Polish. This continued to be the position even though her English was improving and she was attending school and church conducted through English. She lived with two Polish people and it must be assumed conversed with them in Polish due to her desire to speak this language at interview.

Indeed, when school friends (three only) were mentioned, there was reference to speaking with one of these in Polish.

90. When psychological counselling was sought by the Respondent for the child (a report was exhibited which has been discussed previously), this was arranged in Poland.

91. Of significance in relation to the issue of her sense of integration in community, the assessor concluded:

“56. M.X.’s description of life in Ireland indicates, that her significant relationships are with her mother and step father; her friendships are all school based; she provides no descriptive narrative about her teacher, school or neighbourhood; she is not engaged in any extracurricular activities and has no caregivers other than her mother and step father.”

92. On the basis of the foregoing and having regard to the evidence concerning M.X.’s integration and proximity to her environments together with the circumstances in which she was present in Ireland and the lack of consent of the Applicant who had parental responsibility, I find that M.X. remained habitually resident in Poland in June 2024.

Rights of Custody

93. The term “rights of custody” is defined in the Convention. Article 5 states:

“For the purposes of this Convention –

(a) “rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.”

94. I have been referred by the Applicant to the judgment of Finlay Geoghegan J. in M.J.T.

v C.C. [2014] IEHC 196 where it is stated that a liberal view is taken by the courts as to what constitutes rights of custody. Corrigan, “The Law of Child Abduction in Ireland”

states at p. 73:

“The position thus established in Irish law was that, while not without limits, a wide meaning should be given to ‘rights of custody’.”

95. The author proceeds to reference the judgment of Finlay Geoghegan J. in RC v. IS (Child Abduction: Rights of Custody) [2003] 4 IR 431 where it is stated:

“…, I have concluded that a person, such as the applicant herein, who is a married parent of a child and guardian, albeit jointly with another of the child notwithstanding that he does not have custody of the child under Irish law is a person who has "rights of custody" in relation to the child within the meaning of article 5 of the Hague Convention. He is a person who has rights "relating to the care of the person" of the child and has the right, jointly with others, to determine, inter alia, the child's place of residence. Of course, if there exists a dispute between himself and his joint guardian on important welfare issues relating to the child, including the child's place of residence, then such matters may have to be determined by a court.”

96. In the present case, the parties are married and M.X. is a child of this marriage. A consideration of the divorce pleadings indicates that the Respondent has made an application to limit the parental authority of the Applicant over M.X. while the Applicant seeks that such parental authority be left with both parents. No Orders have been made in this regard. I therefore conclude that both parents continue to have rights of custody. In addition to the foregoing, in accordance with the authorities, it would appear that the Polish courts enjoy rights of custody where there are extant proceedings relating to the child before those courts, proceedings in which both parents are participating and, indeed, in which both have invoked the jurisdiction of the Polish courts seeking varying reliefs pertaining to the arrangements for the child. In this regard, I rely upon the decision of the Supreme Court in GT v. KAO [2008] 3 IR 567.

Exercise of Rights of Custody

97. The authorities in relation to the exercise of custody are considered by Finlay Geoghegan J. in M.J.T. v C.C. [2014] IEHC 196 at paragraphs 21 and following.

Having endorsed the liberal view taken in this regard, the learned Judge states:

“21 In Re H.; Re S. (Minors) Abduction: Custody Rights [1991] 2 A.C. 476, Lord Brandon observed at p. 500:-

"In my view article 3(b) must be construed widely as meaning that the custodial parent must be maintaining the stance and attitude of such a parent, rather than narrowly as meaning that he or she must be continuing to exercise day to day care and control."

22 In Re W. (Abduction: Procedure) [1995] 1 F.L.R. 878, Wall J. in the context of considering a defence raised pursuant to Article 13(a) of non-exercise of rights of custody, rejected a contention that the agreement of a mother who held sole rights of custody that the child live with his father was not a continuing exercise of the mother's rights of custody. He considered that the approach he took was supported by the observation of Lord Brandon to which I have referred.

23 In Friedrich v. Friedrich 78 F. 3d 1060 (6th Cir. 1996) in the U.S. Court of Appeals for the Sixth Circuit, Boggs J. put it thus:-

"Enforcement of the Convention should not to be made dependent on the creation of a common law definition of 'exercise'. The only acceptable solution, in the absence of a ruling from a court in the country of habitual residence, is to liberally find 'exercise' whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.”

24 In this jurisdiction, McGuinness J. in the Supreme Court again considered the actual exercise of rights of custody in the context of a defence raised pursuant to Article 13(a) of the Convention in M.S.H. v. L.H. [2000] 3 I.R.

390. The applicant father in that case had been imprisoned in England. During the period of imprisonment, the children had been brought to see the father from time to time. In upholding the High Court Judge’s

conclusion that the respondent had not established that the applicant was not exercising his rights of custody at the time of removal of the children to Ireland, McGuinness J. at p. 403, stated:-

“Whether or not the plaintiff was seeing his children at the highest frequency permitted by the prison authorities (a matter on which this court has no evidence either way), it is clear that he was exercising his right to see them and to maintain his relationship with them. In addition his application to the Oldham County Court to obtain a prohibited steps order was a clear exercise of his right of custody.””

98. In the present instance, it is agreed that the Applicant had regular access with M.X.

until September 2022. While there are inconsistencies in the evidence adduced by the Respondent in relation to the qualitative nature of such contact, she accepts that it occurred. The Applicant’s consistent evidence is that he continued to seek contact with M.X. thereafter but that this was frustrated by the Respondent. He requested of the Polish courts that this would be dealt with in the context of the divorce proceedings and he sought interim orders in this regard by court application which came before the court in April 2023 (the date of initiation of such interim application is unknown to me and obviously preceded the response document of the Respondent of March 2023. Orders were made in his favour by the Polish court in the context of such application and he attempted to implement such orders, which attempts were frustrated by the Respondent’s removal of the child to Ireland without his knowledge or consent resulting in the First Proceedings being instituted. It is amply clear that there was agreement between the parties to the exercise by the Applicant of his rights of custody subsequent to the compromise of the First Proceedings and visits occurred in June 2024 and August 2024. Indeed, it is my conclusion, based on the evidence before me, that the exercise of his rights of custody by the Applicant has been focussed upon the child and her welfare, even where this has necessitated inroads on his legal entitlements and his wishes. In the Answer in the divorce proceedings, while he seeks that the child live with him, he requests:

“Despite the fact that the defendant is requesting permanent residency with him, he believes that in view of the long separation, it will be consistent with the minor’s welfare for the duration of the proceedings to secure contact between the defendant and the minor in order to rebuild a bond with his daughter and provide her with a sense of stability.”.

99. Additionally, again exercising child focussed parental decision making, in compromising the first proceedings, in circumstances in which he was entitled to access in accordance with the Orders of the Polish court of the 21st April 2023, the Order of this Court of the 30th May 2024 recites that he “waives his Access Order pending further determination by the Polish Courts on the understanding that the Polish Courts will act quickly in relation to same”.

100. Thereafter, he endeavoured to exercise his rights of custody in accordance with agreements between the parties, having exercised them in a manner calculated to support the child’s transition from a situation created solely by the actions of the Respondent (the non-consensual removal of the child from Poland). In the words of Boggs J., I find that the Applicant with de jure custody rights kept, or sought to keep, regular contact with the child.

DEFENCES

Grave Risk

101. The law relating to grave risk in Ireland is well established and was clearly stated by Denham J. in the Supreme Court in AS v. PS [1998] 2 IR 244, wherein she stated at page 259: -

“The law on ‘grave risk’ is based on art.13 of the Hague Convention, as set out earlier in this judgment. It is a rare exception to the requirement under the Convention to return children who have been wrongfully retained in a jurisdiction other than that of their habitual residence. This exception to the requirement to return children to the jurisdiction of their habitual residence should be construed strictly. It is necessary under the Convention that the situation be one of grave risk, an intolerable situation. The Convention is based on the concept that the children’s interest is paramount. It is not in the children’s best interests to be abducted across state borders. Their interest is best met by the courts of the jurisdiction of their habitual residence determining issues of custody and access.”

102. She continued at page 264:

“[…] The strong thread through all the case law is the fundamental concept of the Hague Convention that (except in rare cases) the issues of custody and access should be determined in the jurisdiction of the children’s habitual residence. Thus, if children are abducted or retained across state lines they should be returned to their habitual residence. The exception to this fundamental concept carries a heavy burden, the test is a high one. It is not a case of determining where the custody and access should lie, what is the paramount interest of the child in that regard. It is a question of enforcing the Hague Convention which has at its core the paramount interest of the child that it should not be wrongfully removed or retained across state borders.”

103. This was a case in which sexual abuse was alleged by the Respondent and involved an application for return to England. The Supreme Court, recognising that

“England had a sophisticated family law legal system which can deal with issues of custody, access and child abuse” directed a return of the children subject to undertakings.

104. The defence of grave risk was considered by the UK Supreme Court in 2011 in the oft cited and approved case of In Re: E (Children) (Abduction: Custody Appeal) [2011]

2 FLR 758. At paragraphs 32 -35 the test is set out in summary:

“32. First, it is clear that the burden of proof lies with the “person, institution or other body” which opposes the child’s return. It is for them to produce evidence to substantiate one of the exceptions. There is nothing to indicate that the standard of proof is other than the ordinary balance of probabilities. But in evaluating the Page 13 evidence the court will of course be mindful of the limitations involved in the summary nature of the Hague Convention process.

It will rarely be appropriate to hear oral evidence of the allegations made under article 13b and so neither those allegations nor their rebuttal are usually tested in cross-examination.

33. Second, the risk to the child must be “grave”. It is not enough, as it is in other contexts such as asylum, that the risk be “real”. It must have reached such a level of seriousness as to be characterised as “grave”. Although “grave” characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as “grave” while a higher level of risk might be required for other less serious forms of harm.

34. Third, the words “physical or psychological harm” are not qualified.

However, they do gain colour from the alternative “or otherwise” placed “in an intolerable situation” (emphasis supplied). As was said in Re D, at para 52, “‘Intolerable’ is a strong word, but when applied to a child must mean ‘a situation which this particular child in these particular circumstances should not be expected to tolerate’”. Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself.

Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent.

Mr Turner accepts that, if there is such a risk, the source of it is irrelevant: eg, where a mother’s subjective perception of events leads to a mental illness which could have intolerable consequences for the child.

35. Fourth, article 13b is looking to the future: the situation as it would be if the child were to be returned forthwith to her home country. As has often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested her return, although of course it may be so if that person has the right so to demand. More importantly, the situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home. Mr Turner accepts that if the risk is serious enough to fall within article 13b the court is not only concerned with the child’s immediate future, because the need for effective protection may persist.”

105. It is also important to reference the decision of Gearty J. in Q v Q [2023] IEHC 183 which recognises that grave risk may arise not only from one particular event or type of behaviour but may be cumulative:

“The accumulated evidence of recent events in the case establishes, in this Court’s view, that while the Respondent has not been blameless in the breakdown of the relationship and undoubtedly was wrong to remove the children, the Applicant persistently engages in conduct which is harmful and pervasive in terms of his control of his wife’s life and finances, such that he has created an intolerable situation for her, albeit one that does not affect the children in the same way. This finding is made in the knowledge that she herself has not behaved well on many occasions, including in particular exposing the children to information that they should not hear anything about.

The Applicant’s conduct, however, appears to be different in degree and in frequency. He also appears not to recognise the harm that he causes, whereas she has repeatedly apologised for general and specific failings.”

106. The correct approach to be taken in the application of this defence was set out by the Supreme Court (Fennelly J.) in P.L. v E.C. [2008] IESC 19, [2009] 1 IR 1, a case also involving allegations of sexual abuse, at paragraph 55 of the judgment:

“55. The correct approach to the treatment of this issue is very well established in the case law. It is not the purpose of the Hague Convention that hearings of Convention applications should turn into inquiries as to the best interests of the child. The normal presumption is that issues of that sort which will extend to all aspects of child welfare including custody and access) will be decided by the courts of the country of habitual residence. It is the fundamental objective of the Convention to discourage the abduction of children from the jurisdiction of the courts which have jurisdiction to decide those issues. The courts of the country to which the child has been removed must order the return of the child, unless one of the Convention exceptions is established. A court is not entitled to refuse to make such an order based on the general considerations of the welfare of the child. It is, naturally, implicit in this policy that our courts must place trust in the fairness and justice of the courts of the other country.”

107. The Court continued:

58. In R.K. v J.K. [2000] 2 I.R. 416, Barron cited with approval the following passage from the judgment of the United States Court of Appeals Sixth Circuit in Friedrick v. Friedrick (1996) 78F 3d 1060:

"Although it is not necessary to resolve the present appeal, we believe that a grave risk of harm for the purposes of the Convention can exist in only two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute, e.g. returning the child to a zone of war, famine or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the Court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection."

108. In the present case, it is clear that, if the defence is engaged at all, it is the second situation which is engaged, and I must address whether or not the evidence before me supports (a) that there is a grave risk and (b) whether the Polish courts may be incapable or unwilling to give the child adequate protection. As Fennelly J. further stated:

“60. The court must apply these principles to the facts of this case. It is indisputable that a risk of sexual abuse is a grave risk. The learned High Court judge has said that there was prima facie evidence of sexual abuse before the Australian court. It is undoubtedly the case that the appellant has made such allegations before the Australian court. However, as the learned judge correctly said, that court has not yet ruled on the allegations. The High Court did not hear any direct evidence on the issue but was informed of the nature of the evidence before the Australian court. I am not sure that it is right to rule on the quality, even at a prima facie level, of the evidence before the court of the other country. It is clear that there was a great deal of oral evidence before the Australian court, but this court has seen none of that.

Nonetheless, this court must take note of the fact that such an allegation has been made and that it awaits adjudication before the Australian court. It is also clear that the allegation is strenuously denied. It is not possible to go further.

61. The real issue concerns the position that this court should adopt in relation to the fact that the identical allegations are the subject of proceedings before the Australian court. The appellant submits that she has produced evidence to satisfy the test that the Australian court is unable or unwilling to protect the interests of C.” The “real issue” for determination in that case was not unlike that in the present case. Is there a grave risk?

109. The evidence before me consists of allegation and counter-allegation by the parties against each other in the context of marital breakdown and divorce proceedings. Yet again, there is some inconsistency in the Respondent’s evidence in this regard but, even if taken at its height, there is no evidence supportive of grave risk from the behaviour of the Respondent and there is no evidence that, if there was such risk, the Polish authorities would not be in a position to address it. It should be said that there is no evidence of inability to address any such risk by the Polish authorities because there is no evidence of those authorities having been called upon to do so. The Respondent did seek to assert that there was a serious risk of psychological harm to the child if returned based upon the strongly expressed views of the child not to wish to see her father.

While I have expressed concerns as to the impartiality of and manner of assessment resulting in the psychological report exhibited, it must be remembered that the Applicant agreed to waive access with M.X. upon her return and therefore all of these issues would be subject to determination by the Polish courts or agreement of the parties.

Wishes of child

110. Article 13 of the Convention provides that a Court may refuse to order a return 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. The three stage test from Re M (Abduction: Child’s Objections) was endorsed in this jurisdiction by Finlay Geoghegan J. in MS v. AR [2019] IESC 10:

“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.”

111. In the context of this case, the dicta of Ní Raifeartaigh J. in ZR v. DH [2019] IEHC 775 are instructive:

“The Court's focus should be on ascertaining the true will and desire of the child (and the strength or firmness of that desire) and should not become unduly fixated on the actual words used, because this could become an exercise in semantics which might focus too much on the words the child used. A child does not speak with the Hague Convention terminology in mind but rather is using language appropriate to his age, intellectual ability, articulacy and so on.”

112. The issue of influence was considered in the context of the second prong of the test.

The Court stated:

“As to whether the child had been influenced in his views, the assessor said: “The language L used, the detail of remembered events and the lack of evidence of any coercion or rehearsal of stories leads me to believe that these are his own views.” That was also my own impression; I am obviously much less expert then the psychologist, but it is of comfort to me to note that my own impression was consistent with what the assessor said, namely that he seemed to express his views in a way that suggested to me they were genuinely his own and that he used language and descriptions very spontaneously to express these views.”

113. The Court then continued to consider the third stage of the test:

“24 The third prong of the test deals with the discretion of the Court and this is where matters become extremely difficult for a trial judge in these situations. The authorities are very clear on the matters to be taken into account, and I refer again to to the most recent Supreme Court decision ( M.S.

v. A.R. [2019] IESC 10) in which a framework is very clearly laid out for how the Court should approach the issue of discretion. There is no presumptive approach; the child's objection does not presumptively suggest a non-return, even if the Court has found that he has expressed an objection that is authentically his own. The matter is much more complex than that. There are, for example, the policies underlying the Convention and in particular the policy of deterrence, with respect to the removal or (as in this case) retention of children in jurisdictions other than that of their habitual residence. There is also the very important policy that the court of the habitual residence of the child should make decisions about where the child should live and other matters relating to the child's welfare. These policies must be taken into account. There is also the question of the time-frame within which the matter has arisen, and in this case I note that the retention date was May 2019, and that the case came before the Court by way of special summons dated the 1 July 2019; therefore this is a case of a recent retention of the child (bearing in mind the comment of Finlay Geoghegan J. in MS v. AR that “the further one is from a prompt return, the less weighty the general Convention policies will be”). The situation and the proceedings started at the end of one school year, although we have already started into a new school year and to my mind, that is also a significant fact when one is dealing with a 13-year old child in secondary school.”

114. There can be no doubt that the child has expressed objections to return to Poland although it is my finding that the objection relates more to contact with the Applicant (and to a lesser degree his family) than to Poland itself. In the most recent report of RMOF, she states “M.X.’s objection to returning to live in the jurisdiction of Poland relates entirely to having contact with her father.” However, I propose to proceed on the basis that prong one of the test is satisfied. I must then consider whether M.X.’s age and degree of maturity are such that it is appropriate to take account of these views.

The child was interviewed by an experienced assessor on three occasions over a period of 18 months. Considerable concerns were expressed by the assessor on each occasion relating to the issue of influence. In the first report, the assessor concluded it to the “likely” that the child’s opinions derived from “received information”. In the second report, the assessor opined “M.X. is likely rehearsing information she has received from others, rather than her own lived experience”. In the third report, it is concluded “In my opinion it is probable that what M.X. said in interview with me was received from others; her emphatic opinions and reported experiences, lacked nuance, idiosyncratic and contextual information and were not amenable to gentle challenge.”

115. Having regard to the opinions concluded by the assessor over a considerable period of time, I find that M.X. has not attained an age and degree of maturity at which it is appropriate to take account of her views. I find that the views expressed were influenced, not independent and not the authentic voice of M.X. Having regard to the evidence of the assessment reports and the conclusions therein, I would, in the alternative, exercise my discretion pursuant to the third prong of the objections test in favour of return. I do so having regard to the policies under the Convention.

Settlement

116. In circumstances in which I have concluded that the wrongful removal of the child in the context of these proceedings occurred in June 2024, the issue of settlement does not arise as these proceedings were instituted within the one year period thereafter. Welfare and best interests of the child

117. I have had regard to the jurisprudence of the European Court of Human Rights and the welfare and best interests of the child in the context of this judgment. I have had regard to the dictum in GS v. Georgia [2015] ECHR 2361/13 which states:

“43. The decisive issue is whether the fair balance that must exist between the competing interests at stake: those of the child, of the two parents, and of public order, has been struck, within the margin of appreciation afforded to States in such matters, taking into account, however, that the best interests of the child must be of primary consideration and that the objectives of prevention and immediate return correspond to a specific conception of “the best interests of the child”;

44. There is a broad consensus, including in international law, in support of the idea that in all decisions concerning children their best interests must be paramount. The same philosophy is inherent in the Hague Convention, which associates this interest with restoration of the status quo by means of a decision ordering the child’s immediate return to his or her country of habitual residence in the event of unlawful abduction, while taking account of the fact that non-return may sometimes prove justified for objective reasons that correspond to the child’s interests, thus explaining the existence of exceptions, specifically in the event of a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13, first paragraph, (b));

45. The child’s interest comprises two limbs. On the one hand, it dictates that the child’s ties with its family must be maintained, except in cases where the family has proved particularly unfit. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family. On the other hand, it is clearly also in the child’s interest to ensure its development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development;

46. In the context of an application for return made under the Hague Convention, which is accordingly distinct from custody proceedings, the concept of the best interests of the child must be evaluated in the light of the exceptions provided for by the Hague Convention, which concern the passage of time (Article 12), the conditions of application of the Convention (Article 13 § a) and the existence of a “grave risk” (Article 13 § b), and compliance with the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms (Article 20). This task falls in the first instance to the national authorities of the requested State, which have, inter alia, the benefit of direct contact with the interested parties. In fulfilling their task under Article 8, the domestic courts enjoy a margin of appreciation which, however, remains subject to European supervision. Hence, the Court is competent to review the procedure followed by domestic courts, in particular to ascertain whether the domestic courts, in applying and interpreting the provisions of the Hague Convention, have secured the guarantees of the Convention and especially those of Article 8;

47. A harmonious interpretation of the European Convention and the Hague Convention can be achieved, provided that the following two conditions are observed. Firstly, the factors capable of constituting an exception to the child’s immediate return in application of Articles 12, 13 and 20 of the said Convention, particularly where they are raised by one of the parties to the proceedings, must genuinely be taken into account by the requested court. That court must then make a decision that is sufficiently reasoned on this point, in order to enable the Court to ascertain that those questions have been effectively examined. Secondly, these factors must be evaluated in the light of Article 8 of the Convention; and

48. Article 8 of the Convention imposes on the domestic authorities a particular procedural obligation in this respect: when assessing an application for a child’s return, the courts must not only consider arguable allegations of a “grave risk” for the child in the event of return, but must also make a ruling giving specific reasons in the light of the circumstances of the case. Both a refusal to take account of objections to the return capable of falling within the scope of Articles 12, 13 and 20 of the Hague Convention and insufficient reasoning in the ruling dismissing such objections would be contrary to the requirements of Article 8 of the Convention and also to the aim and purpose of the Hague Convention. Due consideration of such allegations, demonstrated by reasoning of the domestic courts that is not automatic and stereotyped, but sufficiently detailed in the light of the exceptions set out in the Hague Convention, which must be interpreted, is necessary. This will also enable the Court, whose task is not to take the place of the national courts, to carry out the European supervision entrusted to it.”

118. Having determined that the defences under the Convention are not engaged, I find that the best interests of the child dictate that the child be returned to Poland and that the appropriate child arrangements for M.X. going forward be determined by the Polish courts in the context of the extant proceedings in that jurisdiction with which both parents are engaged. I am of the view that any interim concerns or accommodations arising or required may be addressed by appropriate undertakings, the nature and extent of which I will determine having afforded the parties an opportunity to address me on same.

CONCLUSION

119. I have therefore concluded:

A. M.X. was wrongfully removed from Poland by the Respondent on or about the 21st June 2024;

B. M.X. remained habitually resident in Poland in the summer of 2024;

C. The Applicant had rights of custody and he was exercising such rights at this time;

D. There is no evidence of conduct such as remotely meets the standard required to establish a grave risk of psychological or physical harm to the child in the event of a return;

E. The child has expressed a wish not to return but I find this not to be independent and to have been the subject of considerable influence.

120. In these circumstances, the Convention mandates that the child be returned to Poland forthwith and I will so order. It is important that M.X. be returned such that she can commence school in Poland for the new academic year. I will therefore order that she be returned on or before the 11th August 2025. I will hear from the parties as to whether there are any necessary undertakings required at a time of their convenience on the 28th July 2025.