P. v P.

Factual and Procedural Background

This case concerns an application made under the Hague Convention on the Civil Aspects of International Child Abduction 1980, as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act 1991, and Council Regulation (EU) 2201/2003. The application seeks the return of a minor child, referred to here as the Child, to the jurisdiction of the courts of Poland.

The Applicant is the mother of the Child and the Respondent is the father. The parties, both Polish nationals, were married and had the Child as their only child. They divorced in 2009. The Child had been living with the mother in Poland until July 2011.

In July 2011, the father took the Child from Poland to Ireland without the mother's consent. The Child has since lived with the father in Ireland, attending local school and having limited contact with the mother. The mother commenced proceedings for the Child's return to Poland in October 2011.

The father contends that the Child left Poland voluntarily at her own request and raises defences under Article 13 of the Hague Convention, including the Child's objection to return and risk of intolerable situation if returned. The mother denies these contentions, alleging manipulation by the father and stepsister.

An expert psychological report assessing the Child's views, maturity, and the family circumstances was commissioned and considered by the Court. The report indicates the Child objects to return to the mother's care and describes alleged abusive behaviour by the mother and maternal grandmother, though the Court makes no findings on the truth of these allegations.

Legal Issues Presented

1. Whether the removal of the Child from Poland to Ireland was wrongful under the Hague Convention.
2. Whether the Child objects to being returned to Poland and has attained an age and degree of maturity to have her views considered under Article 13 of the Hague Convention.
3. Whether there is a grave risk that returning the Child to Poland would place her in an intolerable situation within the meaning of Article 13(b).
4. Whether the Court should exercise its discretion to refuse or order the Child's return to Poland in light of the Child's objections and the risk of intolerable situation.

Arguments of the Parties

Applicant's Arguments

• The Child's removal to Ireland was wrongful as it was without the mother's consent and in breach of her custody rights under Polish law.
• The defences under Article 13 are not made out; the Child should be returned to Poland where the custody dispute can be properly resolved by the courts of habitual residence.
• The Court should give effect to the policy of the Hague Convention to deter child abduction and uphold the jurisdiction of the courts of the Child's habitual residence.

Respondent's Arguments

• The Child left Poland voluntarily at her own request and thus the removal was not wrongful within the meaning of the Convention.
• The Child objects to being returned to Poland and has attained sufficient maturity for her views to be considered.
• There is a grave risk that returning the Child to Poland would place her in an intolerable situation due to alleged abusive behaviour by the mother and maternal grandmother.
• The Court should exercise its discretion to refuse the order for return based on the Child's objections and the risk to her welfare.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first determined that the Child's removal from Poland to Ireland by the father constituted a removal within the meaning of Article 1 of the Hague Convention. The Court rejected the father's argument that voluntary participation by the Child negated the removal, explaining that the Convention covers all wrongful removals regardless of the child's willingness.

The Court then considered the defences under Article 13. It accepted that the Child objects to being returned and that she has attained sufficient maturity for her views to be taken into account. This was based on the expert psychological report which found the Child capable of forming and articulating her own views, albeit somewhat polarized.

Regarding the Article 13(b) defence of risk of intolerable situation, the Court emphasized that it would not make findings on the truth of the abuse allegations but must consider the risk if the allegations were true. The Court found that if the allegations were true, returning the Child to her mother's care would place her in an intolerable situation.

The Court noted the absence of any evidence of protective measures in Poland that would mitigate this risk. Given the practical realities, including the father's residence in Ireland and the existing custody order vesting parental power in the mother, the Court concluded that the risk was grave and that no adequate arrangements had been made to secure the Child's protection upon return.

Balancing the policy of the Convention, which favors return to the habitual residence for custody disputes, against the Child's objections and risk of harm, the Court exercised its discretion to refuse the order for summary return. The Court emphasized that this decision does not determine custody merits but leaves jurisdiction to the Polish courts to decide custody in the Child's best interests.

Holding and Implications

The Court's final ruling is to REFUSE the application for the summary return of the Child to Poland.

The direct effect of this decision is that the Child will remain in Ireland with the father pending custody proceedings in Poland. The Court will transmit its judgment, the expert report, and relevant documents to the Polish courts via the Central Authorities. The Polish courts have jurisdiction to conduct a full welfare enquiry and make enforceable orders concerning the Child’s custody and possible return.

No new legal precedent was set by this decision; rather, it applies established principles of the Hague Convention and EU Regulation in a fact-specific context emphasizing the balancing of the Child’s objections, risk of harm, and the policy favoring return to habitual residence for custody determination.