High Court: Hague Convention return of a child refused
The High Court has refused the return of a child pursuant to Hague Convention on the grounds that it would place the child in an intolerable situation.
The proceedings concerned the legality of the removal of a seven and a half year old boy I.C. (who the court referred to as Jan) from Poland. Jan’s mother, A.G., brought him to Ireland in December 2018, and he has lived here since. The mother initially argued that the removal was lawful in circumstances where she asserted that she has the right to determine the child’s residence as a result of certain orders made by the Polish Courts in November 2018.
Z.C., the father, disputed that interpretation of the court orders. He made a written request to the Central Authority of Poland that the child be returned to Poland. This request was conveyed to the Central Authority of Ireland by the Polish Central Authority in May 2019.
Mr Justice Garrett Simons heard the matter by way of an application for the return of the child to his place of habitual residence, pursuant to the Child Abduction and Enforcement of Custody Orders Act 1991 (as amended), which gives the Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention) force of law in Ireland.
The mother did not formally concede that the removal of Jan represented a “wrongful removal” within the meaning of the Hague Convention. She argued, mistakenly, that she had the right under an order of a Polish Court to determine unilaterally the child’s place of residence.
The Court considered the question of whether any “defences” to an application for the return of the child under Article 13 of the Hague Convention has been made out by the mother. Mr Justice Simons found that the removal of the child to Ireland was a “wrongful removal” and that the criteria under Article 12 were fulfilled.
The court then had to consider whether the return of the child expose him to physical or psychological harm or otherwise place him in an intolerable situation, being the “grave risk” defence.
The threshold for the “grave risk” defence was enunciated by the Supreme Court (per Mr Justice Henry Barron) in K (R) v K (J) (Child Abduction: Acquiescence)  2 IR 416, approving the United States Court of Appeals for the Sixth Circuit’s formulation in Friedrich v Friedrich, 78 F.3d 1060 (6th Cir. 1996)) “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.”
The approach to be taken by a court where the objecting party seeks to rely on an alleged grave risk of physical or psychological harm was set out by the Court of Appeal in R v R  IECA 265, which is that the onus is on the objecting party to establish that there is a grave risk that the return of the child would expose them to physical or psychological harm or otherwise place them in an intolerable situation. Mr Justice Nial Fennelly made clear in AS v PS (Child Abduction)  2 IR 244 that the test is a high one. He noted that the Irish courts will normally place trust in the courts of the country of habitual residence to be able to protect the children, and the mother where applicable, from any such harm. This is particularly so where the state of habitual residence is a member of the European Union and Article 11 of Regulation 2201/2003 applies to the return.
Mr Justice Simons held that an order directing the return of Jan to Poland would give rise to a “grave risk” that he would be exposed to physical and psychological harm. To require Jan to engage in international travel during the coronavirus pandemic would expose him to a grave risk of contracting the disease:
“The Irish Government has advised against all unnecessary travel at this time. Indeed, there is no evidence before the court that it would be even possible to travel to Poland at this time. There is no evidence, for example, as to whether there are currently any commercial flights operating between Ireland and Poland. There is no evidence as to the immigration or quarantine controls, if any, being imposed on passengers travelling from Ireland to Poland.”
He noted that such an order would place Jan’s mother in the “invidious position” of either exposing herself to a risk to her health by accompanying him to Poland, or else having him travel without her, depriving Jan of his primary carer at a time of significant change in his life: “Whereas this is a choice which the mother must make herself, neither outcome is acceptable from Jan’s perspective.”
It would present a grave risk of psychological harm to Jan, and would thereby place him in an “intolerable situation”. Jan would be confronted with a scenario whereby he would be uprooted from what has been his home for eighteen months. He would then either be placed in the care of a father with whom he has no meaningful relationship and against whom his mother has made serious allegations, or travel with his mother in circumstances where her health would be put at risk.
The application was refused.
© Irish Legal News Ltd 2021