High Court refuses child return to Poland citing grave risk and child objection under Hague Convention Article 13.

THE HIGH COURT

[2026] IEHC 47 [2025 14 HLC]

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

– AND –

IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION, 1980

– AND –

IN THE MATTER OF COUNCIL REGULATION (EU) 2019/1111

– AND –

IN THE MATTER OF B, A MINOR

BETWEEN:

C

APPLICANT

– AND –

D

RESPONDENT

JUDGMENT of Mr Justice Max Barrett delivered on 30th January 2026.

Summary

In this judgment I explain why I will not order the return of the child the subject of these proceedings to Poland at this time.

1. By special summons of 17th October 2025, the applicant father seeks the return to Poland of a child who is approaching eight years of age and who was retained in this jurisdiction by her mother following her arrival in Ireland for the purposes of a holiday. The application is brought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and Council Regulation (EU) 2019/1111. But for the various issues addressed later in this judgment, the evidence before the Court would merit an order directing the child’s immediate return to Poland. Before turning to those issues, it is appropriate to set out the relevant background facts in somewhat greater detail.

2. The applicant is the child’s father. The respondent is her mother. The parties are not married. It is not in dispute that the respondent has experienced difficulties with substance misuse and that she suffers from bipolar disorder. It also appears not to be in dispute that she is an affectionate mother. Throughout the child’s life and, in particular, over the past five years, the applicant has been the child’s primary carer. The respondent relocated to Ireland in May 2023. She also has another daughter from a separate relationship.

3. The child previously travelled to Ireland for access visits with the respondent in 2024 and again in February 2025, on each occasion being returned to Poland at the conclusion of those visits. Prior to the events giving rise to this application, she attended school in Poland.

4. In the summer of 2025, the child again travelled to Ireland for an agreed access visit with the respondent, commencing during her school summer holidays on 1st July 2025. The applicant has indicated that the initially agreed return date was 31st July 2025, although he accepts that he subsequently consented to an extension of the visit until 21 st August 2025.

5. When the extended return date arrived, the respondent declined to return the child to Poland. Shortly thereafter, the applicant made an application through the Polish Central Authority seeking the child’s return. The present proceedings were commenced on 14th October 2025 and heard by me on 19th December 2025 and 22nd January 2026. In addition, both parties have instituted proceedings before a District Court in Poland concerning the child’s future care, which proceedings remain ongoing.

6. The applicant seeks an order for the return of the child pursuant to the above-named Convention and Regulation. It is not in dispute that the child was habitually resident in Poland. Nor is it contested that the applicant enjoys rights of custody in respect of the child under the law of Poland. Given that the child was in the full-time care and control of the applicant prior to the child’s visit to Ireland in July 2025, it follows, prima facie, that he was exercising those rights of custody immediately prior to the wrongful retention.

7. Article 13 of the Hague Convention, I note, provides as follows:

“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that: a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”

8. These proceedings were instituted within a period of less than two months from the date of the wrongful retention. Accordingly, by virtue of Article 12 of the Hague Convention, I am obliged to order the return of the child unless one or more of the recognised defences is established. The matters in dispute are: (1) whether the applicant consented to the child’s permanent relocation to Ireland; (2) whether the child’s return would expose her to a grave risk of physical or psychological harm, or otherwise place her in an intolerable situation; and (3) whether the child objects to being returned.

Consent

9. The respondent contends that it had previously been agreed between the parties that, once she had addressed her personal difficulties (substance issues), the child would come to reside with her. That assertion is disputed by the applicant and, apart from the respondent’s own averments, there is no evidence to support the existence of any such agreement. On the contrary, the communications exchanged between the parties indicate that the child travelled to Ireland for the purposes of a holiday and was expected to return to Poland at the conclusion of that holiday. Counsel for the respondent appropriately devoted little time at the hearing to this alleged consent. It is unsupported by the evidence and, in consequence, cannot succeed as a ground for refusing return.

Grave risk, etc.

10. I emphasise that these proceedings do not determine custody, guardianship, or long-term welfare arrangements. My task is confined to whether an order for immediate return can safely be made

11. The applicant appears to have installed a ‘Nanny Cam’ in his home in Poland. This captured an incident in the days before the child came on her last visit to Ireland (the one which ended in her retention here). In the days before that visit, the applicant was recorded on camera, on one occasion, entering his child’s bed naked while she slept there. The applicant lay with her there for some time and then got up and left the child’s bedroom. This incident is one which, by reason of its nature and context, raises concerns regarding personal boundaries, judgment, and the child’s safety.

12. In assessing this application under Article 13, I am not concerned with the moral characterisation of the above-described incident, nor with the attribution of fault or blame. Moreover, for the avoidance if doubt, I of course make no finding that the applicant has committed any criminal offence, nor do I determine whether the conduct disclosed amounts to child abuse as a matter of law. My assessment is confined strictly to the prospective question posed by Article 13, being to determine whether the evidence before me establishes a grave risk that the child’s return would expose her to physical or psychological harm or otherwise place her in an intolerable situation. The incident disclosed is relevant not because it is disturbing in retrospect, but because it raises unresolved and presently unmitigated concerns as to judgment, boundaries, and insight which bear directly on the child’s immediate safety upon any ordered return.

13. The applicant’s explanation is that he had risen early, did not fully appreciate what he was doing, and that, although he lay naked in bed with the sleeping child, he did not interfere with her in any way. I accept on the evidence before me that the applicant did not physically interfere with the child in any way. Even so, I am unable to accept the applicant’s explanation of the incident on the evidence before me. It is difficult to accept that a man could move about his home, be sufficiently aware of his surroundings to walk safely through that home and enter his daughter’s bedroom and bed, yet at the same time is not fully aware of his actions or their nature. In his affidavit evidence, the applicant refers to what occurred as “a careless incident,” “foolishly thought,” and an “unfortunate incident.” However, he clearly realises that it is more than careless, foolish, or unfortunate because he immediately moves on to suggest that perhaps I might wish to alert the relevant social services (presumably in Poland where there is no power for this Court to control or monitor what happens thereafter) and that he may be directed to undertake a parenting course. The suggestion of a parenting course does not, in my view, meaningfully address the nature of the conduct disclosed or the risks to which it gives rise. On the evidence before me, and in the absence of any demonstrated containment or protective measures, the incident is such as to give rise to a grave risk that the child’s return to Poland would expose her to physical or psychological harm or otherwise place her in an intolerable situation. Viewed together, the applicant’s explanation and his own characterisation of the incident do not provide a reliable basis upon which I could be satisfied that the risk thereby disclosed has been adequately understood, addressed, or contained.

14. While the incident relied upon is a single episode, I do not accept that Article 13 requires a pattern of conduct to be established. In appropriate cases, a single incident may suffice where it reveals a deficit in judgment or boundaries of such seriousness that a court cannot be satisfied, on the evidence available, that the child would be safe upon return.

The absence of repetition is not determinative where the concern arises from the nature of the conduct and the lack of any credible reassurance that it will not recur.

15. The difficulty presenting for me is not the historical fact of the incident alone, but the absence on the evidence before me of any reliable basis upon which I could properly conclude that the factors giving rise to that incident – including issues of judgment, boundaries, and insight – have since been addressed, understood, or contained. It is that absence of demonstrated containment, rather than any moral characterisation of the impugned conduct, which gives rise to the grave risk identified for the purposes of Article 13 of the Convention.

16. It was suggested in the applicant’s written submissions that the incident was in some way less objectionable because it occurred while the child was asleep. I do not accept that proposition. Whether the child was awake or asleep (and she was asleep) she was entitled to respect for physical boundaries consistent with basic child safety norms.

17. At the hearing, counsel for the respondent referred to what had occurred as child abuse.

Counsel for the applicant objected to this terminology. I do not have to decide that issue in order to determine this application. I note only that the conduct disclosed departs sufficiently from ordinary parental boundaries as to give rise to a grave risk that the child’s return to Poland would expose the child to physical or psychological harm or otherwise place her in an intolerable situation.

18. Counsel for the applicant contended that there may be cultural considerations at play in this case such that what occurred would be considered culturally unobjectionable or non-concerning in Poland. No evidential basis has been advanced upon which I could properly conclude that the conduct described by me above would be regarded as culturally acceptable or non-concerning in Poland. Indeed, the applicant’s own characterisation of the incident (as considered above), and the respondent’s opposition to return, are inconsistent with any such suggestion. That submission cannot therefore succeed.

19. I am conscious that an order under the Hague Convention is, in form, an order for return to the State of habitual residence rather than an adjudication on long-term welfare or an order mandating placement with any particular parent. I am also mindful that, in appropriate cases, a return may be effected subject to conditions or safeguards pending determination by the courts of the State to which a child is returned. Where, however, the asserted risk arises from the conduct of the requesting parent, it is incumbent upon that parent to identify concrete, immediate, and enforceable protective measures capable of neutralising that risk upon return. It is not for me to speculate as to what measures might theoretically be available in another jurisdiction in the absence of evidence. No such proposed measures were duly evidenced in this case.

20. On the particular facts of this case, I am satisfied that an order for return would, in practical and immediate terms, result in the child being restored to the care of the applicant, who has been her primary carer and with whom she would reside upon return.

No alternative care arrangement, whether temporary or otherwise, has been identified or proposed, and there is no evidential basis upon which I could conclude that the risk identified would be neutralised by the making of a return order.

21. I accept that the grave risk defence must meet a high threshold before it is satisfied. I also accept, as I must, the binding precedent to which I have been referred in this regard, including R.K. v. J.K. (Child Abduction: Acquiescence) [2000] 2 IR 416; [1998] IESC 49, P.L. v. E.C. [2009] 1 IR 1; [2008] IESC 65, Z.D. v. K.D. [2008] 4 IR 751; [2008] IEHC 176, and R v. R [2015] IECA 265; [2015] IECA 265.

22. I am satisfied that returning the child to the care of a father who has behaved as described above suggests that there is a grave risk that the child’s return to Poland would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The applicant’s recorded conduct is, in and of itself, troubling. The difficulty presenting for me is that, on the evidence before me, there is no reliable basis upon which I could properly be satisfied that a similar incident would not occur following the child’s return.

23. Counsel for the applicant suggested that I could require an undertaking from the applicant that he would self-report to the Polish authorities. With respect, such an undertaking would be of no value. An undertaking given to this Court is effective only insofar as the Court’s coercive powers can be invoked to secure compliance, and this Court has no jurisdiction to enforce such an undertaking in Poland.

24. Counsel further suggested that there might be liaison between this Court and the Polish courts with a view to facilitating the child’s return in a manner that would ensure her safety. With respect, that is not how matters operate. Applications are made to a court of competent jurisdiction, whether in Ireland or in Poland, and the resulting decisions are taken in accordance with the laws and procedures governing that jurisdiction. That is how the rule of law functions: through public courts and established legal processes, not by informal or private communications.

25. In the absence of any evidence as to the availability, timing, or scope of any protective intervention in Poland that would operate immediately upon return, I cannot proceed on the basis of assumption or generalised confidence. Mutual respect between jurisdictions does not relieve me of my obligation to assess risk on the evidence that is actually before me.

26. I have considered with care whether the risk identified could be sufficiently addressed by protective measures short of refusal, including undertakings, conditions attached to a return order, or reliance on post-return intervention by authorities in the State of habitual residence. I approach that question on the basis that return subject to safeguards is, where feasible, to be preferred over refusal. The difficulty here is not that protective measures are inconceivable in principle, but that none have been identified, evidenced, or proposed which would operate immediately upon return so as to neutralise the risk arising from the applicant’s own conduct.

27. I should record expressly that no party proposed, identified, or evidenced any concrete third-party placement, supervision arrangement, or immediate child-protection intervention in Poland that would operate upon or contemporaneously with the child’s return. In particular, no proposal was advanced for temporary care outside the applicant’s household, supervised contact, or the engagement of Polish child-protection services on a defined and immediate basis pending further assessment. In the absence of such proposals, it is not my function to devise or speculate as to protective arrangements in another jurisdiction, nor to assume the existence, timing, or scope of measures that have not been placed in evidence. My assessment must proceed on the basis of the evidence and proposals actually advanced, not on hypothetical safeguards which might be available.

28. I should add that nothing in this decision is intended to impugn in any way the courts of Poland. I have no personal knowledge of those courts and proceed on the assumption and belief that they are as committed to the protection and welfare of children as are the courts of this jurisdiction.

29. My task at this stage is to determine whether acceding to the applicant’s request for the child’s return yields or involves a grave risk that that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

For the reasons already set out, I am satisfied that such a grave risk arises on the facts of this case.

30. The concerns arising from the applicant’s conduct, to which I have referred above, are such that, even in the absence of the child’s objection to returning to Poland, I would in any event have determined that she should not be returned there at this time. But as will be seen the child does object to the prospect of being returned to Poland at this time.

The Child’s Views

31. The next issue to be addressed concerns the views of the child.

32. I emphasise at the outset that the child’s objections do not form the primary basis of my

decision under Article 13 of the Convention. Rather, they fall to be considered as a separate and discretionary ground. Insofar as they overlap with issues of safety and predictability, they serve to reinforce, rather than replace, the conclusions I have already reached. The child’s views are not relied upon as a comparative assessment of parenting quality or as a free-standing welfare determination, but insofar as they bear upon her sense of safety, predictability, and emotional security in the context of a return order

33. I should note in passing that when it comes to the child’s objections, I have been referred to, and accept the guidance provided in, inter alia, L.F v S.C. [2022] IEHC 424 and A.U.

v T.N.U. [2011] 3 IR 683 ;[2011] IESC 39.

34. A learned child psychologist was commissioned to ascertain the views of the child in this regard. Before turning to the contents of the psychologist’s report, it is appropriate to recall why, in family law proceedings, courts attach weight to the views of children.

The practice is not a matter of sentiment but of principle. It rests on well-established considerations. These include the following:

• the child is recognised by law as a person with independent rights and interests, and not merely as the subject of competing parental claims.

• an assessment of the child’s best interests cannot be undertaken in abstraction from the child’s own lived experience of family life.

• a child may possess first-hand knowledge of matters material to the court’s decision, including day-to-day care, emotional security, and perceived safety, which may not be fully or accurately conveyed through adult testimony.

• the views of the child may assist in identifying risks of physical, emotional, or psychological harm that would otherwise remain concealed.

• respect for the developing autonomy and maturity of the child requires that increasing weight be given to a child’s views as age and understanding permit.

• the expression of a child’s views can assist the court in its fact-finding function by corroborating, contextualising, or, where appropriate, casting doubt upon the evidence of adults.

• affording a child an opportunity to be heard may itself be protective of the child’s psychological welfare, by avoiding a sense of exclusion or powerlessness in proceedings that profoundly affect the child’s life.

• the practice accords with domestic and international legal obligations, including the principles reflected in the United Nations Convention on the Rights of the Child.

35. It is against this legal and principled backdrop that I turn to consider the report of the learned child psychologist commissioned to act in these proceedings.

36. In passing, I note that I do not treat the child’s views as determinative, nor do I approach them as a free-standing welfare assessment. Rather, I consider them for the limited purpose contemplated by Article 13 of the Convention, namely whether the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of those views.

37. The psychologist records that the child does not wish to be returned to her father and prefers to remain with her mother. Counsel for the applicant, again acting in his client’s interests, suggested that the child has certain learning and developmental difficulties.

Even so, I can find nothing in the report to support the contention that the child is incapable of expressing an informed view on the issue of her return or indeed of identifying accurately where her affections and inclinations lie. On the contrary, the child has articulated various cogent reasons for her preference not to be returned. By way of example, the report records that:

• “[the child stated that her] father felt nervous/angry sometimes: “It happened when my dad gets nervous and I go to my room and I’m afraid of him. He tries to calm down and when I go downstairs, I’m happy that he has calmed down. I see that he is very nervous.’”

• “[the child] gave a confused narrative about being at home alone and said that in Poland: ‘I was always on my own and when we had a dog

I was not in fear.’ Asked where the grownups were…[the child] said:

‘Nowhere.’ Asked where her dad was, she said: ‘In one of the shops.’”

• “[the child] said that her father didn’t teach her anything when she lived with him.”

• “When asked, [the child] …said if she has to return to Poland she would like to go on Sunday and: “When I don’t need to be afraid of him.”

38. Summarising even those views, what the child states in effect is that:

• she experiences her father as emotionally unpredictable.

• she feels unsafe when he is anxious or angry.

• she has at times felt insufficiently supervised.

• she perceives a lack of emotional support and engagement from her father.

39. Those are not trivial or fanciful complaints. They go directly to the child’s sense of security and emotional wellbeing. They are expressed with a degree of consistency and internal logic that, in my judgment, is inconsistent with any suggestion that they are the product of confusion, immaturity, or suggestion by others.

40. I reject any submission that the child’s expressed wishes can be discounted on the basis of alleged or acknowledged learning or developmental difficulties. The psychologist’s report demonstrates that the child is able to articulate her feelings, reflect on her experiences, and distinguish between situations in which she feels safe and those in which she does not. While her account is that of a child and must be approached with appropriate care, it is nonetheless a genuine and intelligible account of her lived experience.

41. I am satisfied that the child’s objections to being returned are both authentically held and grounded in reasons which she herself understands. In those circumstances, and having regard to her age and maturity, her views carry significant weight in my overall assessment of this matter.

42. Having regard to the child’s views, I am buttressed in my sense that it would not be appropriate to return the child to Poland at this time.

Exercise of Discretion

43. Having found that the evidential threshold under Article 13 has been met, I must determine, on the particular facts before me, whether it is appropriate to exercise my discretion to refuse return.

44. The applicant contends that none of the asserted defences has been established. Without prejudice to that submission, the applicant also relies upon my recent judgment in X v.

Y [2025] IEHC 570. It is a familiar feature of applications across all lists that counsel frequently draw the Court’s attention to one or more earlier decisions of the same judge.

The reasons for this practice may vary, but it is a recurring one. In any event, in that case I summarised, inter alia, various considerations which may arise in child abduction proceedings when questions of discretion fall to be addressed, including the following:

“• the Hague Convention exists not only to achieve justice in individual cases but also to serve a broader deterrent purpose by discouraging the wrongful removal or retention of children across international borders.

• it follows that the discretion conferred by Art.13 must be exercised sparingly if the Convention’s objectives are to be upheld.

• in the present case, Ms Y retained Child A in Ireland with knowledge that this was contrary to the applicant’s wishes and, in so doing, impeded the jurisdiction of the courts of American State A.

• by doing as she did, Ms Y removed Child A from her habitual residence and significantly disrupted the child’s relationship with her father without consultation or agreement.

• it is precisely this form of unilateral conduct that the Convention is designed to deter.

• even if a defence under Art.13 had been established, to decline an order in such circumstances would risk undermining the efficacy and integrity of the Convention’s operation.”

45. As was the case in X v Y, it is beyond doubt that the actions of the respondent in the present proceedings have disrupted the relationship between the child and her father, who has been her primary carer.

46. The child has been removed from her previous life and from her school. Further, as counsel for the applicant observed – and, with respect, the point is well made – if the retention of children following holiday visits were to become commonplace, it would be likely to deter primary carers in one State from permitting a child to spend part of a school holiday with a parent resident in another State.

47. I have carefully weighed the Convention’s objectives of prompt return and deterrence against the risks identified in this case. I fully accept that wrongful retention, inter alia, following holiday access is conduct which the Convention aims to discourage, and that refusal of return is an uncommon outcome. However, where the evidential threshold under Article 13 is met, the Convention itself recognises that the child’s immediate safety must prevail over the general policy of return. The grave risk and child objection elements arising on the particular facts of this case lead me to conclude that I should not exercise my discretion to order the child’s return to Poland at this time.

48. In exercising my discretion as I propose, I am satisfied that this is not a case in which refusal of return rewards wrongful retention, but rather one in which the Convention itself recognises that immediate return must yield to a demonstrable and presently unaddressed grave risk to the child

Conclusion

49. I have considered whether any measures short of refusal could sufficiently mitigate the grave risk identified, including undertakings, conditions attached to a return order, or reliance on post-return intervention by authorities in the State of habitual residence. On the evidence before me, I am not satisfied that any such measures would provide I do not consider that the grave risk presenting can be met by anything less than refusal of return. I note also the child’s objections to being returned.

50. I emphasise that my conclusions in this application have been reached on the specific and unusual facts of this case, including the existence of contemporaneous video evidence, the absence of any satisfactory explanation for the conduct disclosed, and the proximity in time between that conduct and the child’s retention (albeit that knowledge of the event followed the retention). Nothing in this judgment should be understood as lowering the high threshold required to establish a grave risk under Article 13 of the Convention.

51. My refusal of the present application reflects my assessment of the risk as it presently stands, and is not a determination that such risk could never, in principle, be addressed by appropriate and evidenced protective measures

52. I should perhaps note before closing that I make no suggestion that any of the arguments made by counsel in this case ought not to have been made. Nor, of course, do I make any criticism of counsel. They each had a professional duty to represent their clients to the best of their abilities and, if I might respectfully observe, did so professionally and well.

53. I reiterate that my decision to refuse the return of the child who is the subject of this application turns on the unusual convergence of factors present in this case, and should not be understood as diluting the high threshold ordinarily applicable under Article 13 of the Convention.

54. For the reasons stated, the applicant’s application is respectfully refused.