JTS v MKS (Child Abduction: Interpretation of Court Order, Views of the Child) (Approved)

Factual and Procedural Background

The Applicant father seeks an order for the return of his child, hereinafter referred to as the Child, who was removed from Poland to Ireland in August 2021 without his consent. The removal occurred amid ongoing divorce proceedings in Poland between the Applicant and the Respondent mother. The Respondent contends that she was entitled to relocate the Child on the basis of an interim Polish court order granting her residence rights, while the Applicant disputes this and asserts he was exercising custody rights at the time. The Respondent also raises the defence of grave risk and relies on the Child's views to argue against return. The Polish courts have adjourned the divorce proceedings pending the outcome of this application. The case involves interpretation of the Hague Convention on International Child Abduction, the Child Abduction and Enforcement of Custody Orders Act 1991, and Council Regulation 2201/2003/EC.

Legal Issues Presented

1. Whether the removal of the Child from Poland to Ireland was wrongful under the Hague Convention and the Regulation, considering habitual residence and rights of custody.
2. Whether the Applicant was exercising his custody rights at the time of removal.
3. Whether the defence of grave risk applies to prevent the Child's return to Poland.
4. Whether the interim Polish court order granted the Respondent permission to remove the Child to Ireland.
5. How to weigh the Child's views and objections to return under Article 13 of the Hague Convention.
6. Whether a stay of the return order is appropriate pending further proceedings in Poland.

Arguments of the Parties

Applicant's Arguments

• The removal of the Child was wrongful and without his consent.
• He was exercising his custody rights under Polish law, supervised by a court-appointed guardian, and had regular contact with the Child.
• The interim Polish court order did not authorize removal outside Poland.
• The Child should be returned promptly to her habitual residence to allow Polish courts to determine custody and welfare issues.
• The Respondent's claim of grave risk is unsubstantiated.
• He has undertaken to provide financial support to the Respondent and Child pending further proceedings.

Respondent's Arguments

• She was entitled to remove the Child based on an interim Polish court order granting her residence with the Child.
• The Applicant was not exercising custody rights as required.
• There is a grave risk of violence to her, which should prevent the Child's return.
• The Child objects to return and her views should be given weight in the Court's discretion.
• She requests a short stay of any return order to allow Polish courts to determine custody and residence issues.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by establishing that the Child's habitual residence was Poland prior to removal and that the Applicant had rights of custody under Polish law. It found, on the balance of probabilities, that the Applicant was exercising custody rights at the time of removal, supported by evidence of regular contact and court supervision.

The Court then considered the Respondent’s defence of grave risk, concluding that the allegations, even if accepted, related to risk of violence to the Respondent rather than the Child, and that the threshold for grave risk was not met. The Court emphasized the trust placed in the Polish courts to protect the Child and the Respondent, especially as Poland is a Member State subject to Regulation 2201/2003/EC.

Regarding the interim Polish court order relied upon by the Respondent, the Court accepted expert evidence that the order’s reference to “place of residence” was confined to locations within Poland and did not authorize removal abroad. The Respondent’s prior letter to the Polish court did not explicitly mention the Child’s removal to Ireland, further supporting the conclusion that no permission was granted.

The Court then analyzed the Child’s views under Article 13 of the Hague Convention. It found that the Child, aged over nine, objected moderately to returning to Poland, with objections closely linked to living with the Respondent mother. The Court applied established three-stage tests and precedent, concluding that while the Child’s views must be considered, they did not outweigh the Convention’s objectives favoring return.

In balancing all factors, including the Child’s welfare, the Court found no evidence of unhappiness or grave risk in Poland, and noted the Polish courts’ ongoing jurisdiction over custody and welfare matters. The Applicant’s undertaking to provide financial support further mitigated concerns about the Child’s material needs.

Finally, the Court considered the Respondent’s request for a stay of any return order. It recognized that stays may be appropriate in limited circumstances to minimize disruption but emphasized that such stays should be short and not routinely used to frustrate the Convention’s aims. A stay would only be considered if the Polish courts could promptly address custody and residence issues.

Holding and Implications

The Court’s final decision is TO ORDER THE RETURN OF THE CHILD TO POLAND.

This holding means the Child must be returned to her country of habitual residence to allow the competent Polish courts to determine custody and welfare issues. The Court found the removal unlawful and rejected the grave risk defence and the weight of the Child’s objections as insufficient to prevent return. The Court left open the possibility of a short stay if the Polish courts can swiftly address custody matters, but absent that, the return order will be enforced.

No new legal precedent was set; the decision reaffirms established principles under the Hague Convention and EU Regulation regarding wrongful removal, exercise of custody rights, grave risk defence, and consideration of the child’s views. It underscores the importance of comity between jurisdictions and the priority of returning children promptly to their habitual residence for welfare determinations.