H -v- I (Child Abduction: Retained Jurisdiction Following Non-Return Order, Best Interests of the Child) (Approved)

Factual and Procedural Background

The child, referred to as D, is under 10 years old and was removed from his habitual residence in Ireland to Poland in 2018 by the Respondent parent. The parties, who are the child's parents, had lived together in Ireland and D has siblings residing in both countries. The Applicant parent initiated proceedings in Poland under the Hague Convention and Council Regulation 2201/2003/EC to secure the child's return to Ireland. The Polish courts found that D had been wrongfully removed but declined to order his return, citing a grave risk to the child’s welfare under Article 13 of the Hague Convention.

D has been diagnosed with autism spectrum disorder. Initially, the Applicant parent did not accept this diagnosis but has since changed his view and actively supports D’s care. The Polish court's 2018 decision was influenced by the Applicant’s initial rejection of the diagnosis.

Under Regulation 2201/2003/EC, cases where a non-return order is made by a requested state must be reviewed by the courts in the child’s original habitual residence state, in this case Ireland, upon request of either party. The Irish court may then make a final determination on custody and return.

The Irish proceedings were delayed due to difficulties in legal representation, service on the Respondent, the COVID-19 pandemic, and a change of solicitors. The Court emphasized the urgency required for such hearings but acknowledged that no objections were raised by the Respondent regarding delay. The Court proceeded to consider the substantive issues despite strong procedural grounds for refusal.

The core substantive issue before the Court was a custody decision based on the best interests of D, not a summary return under the Hague Convention. The Court was tasked with deciding whether it was in D’s best interests to remain in Poland with the Respondent or to move to Ireland with the Applicant.

Both parents are committed to caring for D despite an unhappy separation and have maintained involvement in his life. The Court found that D’s best interests are served by remaining in Poland, with continued generous access to the Applicant parent. The Court encouraged the parties to agree on a parenting plan, potentially with mediation assistance.

Legal Issues Presented

1. Whether the Court retains jurisdiction to decide custody following a non-return order issued by a Polish court under Article 13 of the Hague Convention and Regulation 2201/2003/EC.
2. Whether it is in the best interests of the child to remain in Poland or be returned to Ireland, considering the child’s welfare under the Guardianship of Infants Act 1964.
3. The applicability and effect of the grave risk defence under Article 13(b) of the Hague Convention in the context of custody and return.
4. The impact of delay in bringing proceedings on the Court’s retained jurisdiction and procedural fairness.
5. The adequacy and availability of therapeutic and educational services in Poland compared to Ireland for a child with autism spectrum disorder.
6. The formulation and implementation of a parenting plan to support the child’s welfare and parental cooperation.

Arguments of the Parties

Applicant's Arguments

• The Applicant initially did not accept the autism diagnosis but later accepted it and has worked to support D’s needs.
• The Applicant contended that the Polish court’s non-return order was influenced by his initial rejection of the diagnosis and argued that D should be returned to Ireland.
• He raised concerns about the adequacy of therapeutic services and treatments D receives in Poland, including diet, therapies, and schooling.
• The Applicant maintained that D makes better progress in Ireland and expressed frustration at lack of information about D’s schooling and therapies in Poland.
• He argued that his relationship with D would change adversely if D were not returned to Ireland.
• The Applicant submitted that there was no evidence of services provided to D in Poland sufficient to meet his needs.
• He expressed concern about parental alienation and the potential loss of his contact with D after the proceedings.

Respondent's Arguments

• The Respondent established the grave risk defence under Article 13(b) of the Hague Convention to prevent return.
• She has provided and maintained appropriate therapeutic and educational services for D in Poland.
• The Respondent represented herself and did not object to delays in proceedings.
• She agreed to generous access arrangements for the Applicant throughout the proceedings.
• She challenged the Applicant’s assertions about the adequacy of care and therapies but did not provide expert evidence to contradict the Applicant’s experts.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by confirming its retained jurisdiction under Article 11(7) of Regulation 2201/2003/EC to conduct a welfare hearing following the Polish court's non-return order. It acknowledged procedural delays but found no objection from the Respondent and proceeded to address substantive issues to avoid procedural unfairness.

The Court distinguished between the summary return mechanism under the Hague Convention and the welfare-based custody determination under national law, specifically the Guardianship of Infants Act 1964, which prioritizes the child's welfare as paramount.

The Court carefully considered the evidence from two experts: an Irish clinical psychologist who gave oral evidence and a Polish psychologist who provided a written report. The Court placed significant weight on the Irish expert's evidence due to the opportunity for cross-examination.

Both experts agreed that the child was receiving appropriate therapeutic and educational services in Poland. The Irish expert acknowledged challenges in accessing comparable services in Ireland, particularly the availability of a multi-disciplinary therapeutic team, which was crucial for the child's welfare.

The Court found that the Applicant's concerns about therapies, diet, and schooling in Poland were not supported by expert evidence. The Applicant's initial rejection of the autism diagnosis influenced the Polish court's original decision but was no longer relevant as the Applicant now accepts the diagnosis and supports his son's needs.

The Court noted the excellent relationships the child has with both parents but emphasized the importance of stability, continuity of care, and treatment consistency. It highlighted the risks posed by a move to Ireland without guaranteed equivalent therapeutic support and the potential harm from disrupting the child's established routines and language environment.

The Court identified poor communication between the parents as a significant problem undermining the child's care and endorsed the expert recommendation for a parenting plan to facilitate cooperation and consistent care.

The Court accepted that while the child would likely not experience extreme distress from moving, such a move was not in his best interests absent immediate access to appropriate therapeutic services in Ireland, which currently do not exist.

Holding and Implications

The Court's final decision was to refuse the Applicant's motion to order the return of the child to Ireland and to determine that it is in the best interests of the child to remain in Poland under the care of the Respondent parent.

The Court emphasized the importance of maintaining generous access for the Applicant parent and encouraged the parties to urgently agree on a parenting plan to improve communication and coordinate the child's care and treatment across both jurisdictions.

This decision does not legalize the initial unlawful removal but reflects a welfare-based custody determination under Irish law following the non-return order by the Polish court.

No new legal precedent was established; the ruling applies the established principles of the Hague Convention, Regulation 2201/2003/EC, and the Guardianship of Infants Act 1964 to the facts of this case.

The Court made no order as to costs but reserved the issue for further submissions, mindful of the parties' financial resources and the importance of preserving funds for the child's care and family contact.