R.W. v T.W. (Child Abduction: Retained Jurisdiction Following Non-Return Order, Best Interest of the Child) (Approved)

Factual and Procedural Background

The case concerns a minor child, referred to as Q, who was brought to Poland by the Respondent in 2019. The Polish courts found that Q had been wrongfully removed but upheld a defence of grave risk, resulting in non-return orders. The Applicant father seeks to have these non-return orders overruled by the Irish High Court and to have Q returned to Ireland. The proceedings have been ongoing since 2022, with delays caused by the Respondent and difficulties in obtaining expert reports. An expert assessor was appointed in 2023 and traveled to Poland to prepare a report. Interim access arrangements were directed but not consistently followed. The Court is tasked with reviewing the non-return order under Article 11 of Council Regulation 2201/2003/EC, focusing primarily on the best interests of the child.

Legal Issues Presented

1. Whether the Irish Court retains jurisdiction under Articles 10 and 11 of Regulation 2201/2003/EC despite the child’s change of habitual residence to Poland.
2. Whether the non-return orders made by the Polish courts should be overruled, resulting in the return of the child to Ireland.
3. How to determine the best interests of the child in the context of custody and habitual residence under the Guardianship of Infants Act 1964 and Regulation 2201/2003/EC.
4. The appropriate handling of delays and procedural management in Article 11 cases involving child abduction and custody.
5. The impact of alleged violence and alcohol abuse by the Applicant on the child’s welfare and custody considerations.

Arguments of the Parties

Applicant's Arguments

• The Applicant seeks the return of the child to Ireland, arguing that the Polish non-return orders should be overruled.
• The Applicant denies acquiescence to the child’s habitual residence in Poland despite engaging with Polish courts.
• The Applicant disputes the expert assessor’s conclusions regarding his alcohol use, asserting he only drinks socially once a month.
• The Applicant emphasizes the importance of maintaining a meaningful relationship with the child.
• The Applicant has not made proposals regarding custody, care, or upbringing of the child if returned to Ireland.

Respondent's Arguments

• The Respondent argues that the child is now habitually resident in Poland and the Irish Court should refuse jurisdiction.
• The Respondent established the defence of grave risk in the Polish courts based on alleged violence and alcohol abuse by the Applicant.
• The Respondent contends that the Applicant has used violence and has an alcohol problem, posing a risk to the child’s welfare.
• The Respondent has facilitated access to the Applicant despite difficulties, maintaining the child’s relationship with his father.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first addressed the jurisdictional question raised by the Respondent, rejecting the argument that the Applicant had acquiesced to the child’s habitual residence in Poland. The Court interpreted Articles 10 and 11 of Regulation 2201/2003/EC to require both a change in habitual residence and evidence of acquiescence unless a non-return order is confirmed by the courts of the child’s original habitual residence, which applies here.

Turning to the merits under Article 11, the Court emphasized that this is a welfare hearing, not a summary return application, and must be decided under the Guardianship of Infants Act 1964, with the child's best interests as paramount. The Court considered factors including the child’s nationality, language, upbringing, family ties, and special educational needs. It accepted the expert assessor’s findings that the child’s primary attachment is to the Respondent and that he receives special therapy in Poland unavailable in Ireland.

The Court found the Applicant’s failure to propose a care plan for the child in Ireland significant. The Applicant’s relationship with the child, while important, was only one factor. The Court also considered the evidence regarding the Applicant’s alcohol use, accepting the assessor’s conclusion that the Applicant likely has an alcohol abuse problem, which poses a risk to the child’s welfare.

The Court noted procedural delays and criticized the late raising of jurisdictional objections, emphasizing that future cases must be expedited to avoid prolonged uncertainty detrimental to the child’s welfare. The Court recognized the importance of maintaining access arrangements but concluded that access issues are to be resolved by the courts in Poland following this decision.

Holding and Implications

The Court REFUSED the Applicant’s application to overrule the non-return orders and to have the child returned to Ireland. The best interests of the child are served by allowing Q to remain in Poland, where he has established familial, linguistic, educational, and therapeutic connections. The Court’s decision upholds the Polish non-return orders and confirms the retention of jurisdiction under Article 11 of Regulation 2201/2003/EC.

This ruling directly affects the parties by maintaining the child’s residence in Poland and leaving access matters to the Polish courts. The decision does not establish new legal precedent but reiterates the application of existing principles regarding jurisdiction, best interests, and procedural management in Article 11 cases.