D -v- D
HIGH COURT
Judgment was delivered by Mr Justice John MacMenamin on June 13th, 2008.
JUDGMENT
Under the Hague Convention on Child Abduction, a nine-year-old boy brought to Ireland by his mother in 2006 must return to his grandfather in Poland, who had legal custody of the boy before he was brought to Ireland.
BACKGROUND
The case concerned a boy born in October 1998. His father died in 1999, and the case of the applicant, the boy's maternal grandfather, is that he lived with him and his wife (the boy's grandmother) from his birth. His daughter, the child's mother, also lived with them for a short time, but in 1999 moved away from their home town.
In March 2002 her parental rights were restricted on an interim basis by the local family court. In March 2004 care of the child was transferred to the grandmother. However, she died in October 2005, following a divorce from her husband (the grandfather) in 2002. However, they had continued to live under the same roof with the child.
In November 2005 the mother removed the child from his grandfather's home and took him to live with her. In December that year the court ordered the child to be placed in the grandfather's foster care permanently. This order was confirmed by a further court hearing in September 2006.
The mother did not surrender the child following that order, and the authorities were informed. They failed to find the mother and child. In 2007 it was suggested that they had gone to Denmark, but they were not found there. It later emerged that the mother and child had moved to Ireland.
In October 2007 the grandfather applied to the Irish authorities for the return of the child under the Hague Convention, and the Clondalkin Law Centre was asked to act on his behalf. Documents were served on the respondent, the mother, who was at this time living in Cork.
She said that she had left her parents' home in 1999 following the death of her partner, in order to get work and look after his affairs. She said that she visited her son in her parents' home regularly.
She claimed that it was not the case that the boy was placed in foster care in 2005, and that she sought to have her full parental rights restored, but not in her home town, as she claimed that her grandfather was in a relationship with the prosecutor there. There was no evidence of this claim.
She stated that her grandfather did not have rights of custody in September 2006, and that his consent was not necessary for the removal of the child from Poland.
The court examined various Polish court orders and established that the court found that the mother had not shown any interest in her child, had visited him only every few months and that she did not consent to his being placed in the care of her mother.
The court also found that, following the death of the grandmother in 2005, the grandfather had applied for, and been granted, custody of the child, who was placed in his foster care.
However, the mother, who had taken the child, refused to comply with this order.
Further, permanent, orders were granted to the grandfather, but not complied with.
The court found that at the time of the child's departure from Poland, the mother did not have parental rights. The departure took place within five days of the final order being made.
The court also heard affidavits of Polish law, which stated that the basis for the decisions made was the welfare of the child. The grandfather, as foster parent, had the right to decide the child's place of residence.
The court then went on to consider the views of the child - specifically, whether he objected being returned to Poland and had reached an age and degree of maturity where it would be appropriate to take his views into account; whether he had become settled in his new environment, and whether there was a grave risk that his return would expose him to psychological harm or otherwise place him in an intolerable situation.
Accordingly, a psychiatric report was commissioned by Dr Colm O'Connor, child psychologist.
The interview was conducted through an interpreter, as the child's English was poor. This found that he had learning difficulties, which had already been identified by a psychological report in Poland. However, his language support teacher reported that he had progressed from a zero reading ability in English to an English reading age of 7.2, which was a remarkable achievement.
It appeared that he was more intelligent than had first been thought, and his ability was within a normal range. His attendance had been poor during his first year in school in Ireland. He found he had poor social skills and little sense of personal boundaries, indicating he had not attended school before and had no pre-school experience. He was stubborn and disengaged, but also had a "child-like co-operativeness" and was likeable.
Overall, he appeared to display immature social and emotional behaviour, but nonetheless seemed to have made considerable progress since his arrival in Ireland and attendance at school, where he was repeating second class.
He stated very specifically that he did not wish to return to Poland and his grandfather, whom he described as a "bad man". He said he liked his grandmother and was very sad when she died, and felt his grandfather had treated her badly. He said his mother loved him and was very good to him.
Dr O'Connor commented that it was impossible for a nine-year-old child, who had been through considerable distress, to form his views entirely independently of his mother, given the degree of dependency he inevitably feels.
It was very clear he imagined his future to be with his mother, and did not think beyond that. Another change will cause major disruption in his life.
A complicating factor in the case was that a European Arrest Warrant had been issued for the mother in relation to the abduction. However, no information was available to the court as to what would happen if she returned.
The grandfather conceded he would not exercise his right to immediate custody pending a review of the child's welfare by the Polish courts.
DECISION
As the right of custody of the grandfather was clear from the Polish court proceedings, Mr Justice McMenamin considered whether Article 13 of the Hague Convention, strengthened by Article 2 of the Brussels II Regulation, should lead to the conclusion that the views of the child should determine the outcome of the proceedings.
"The views of the child are not synonymous with an obligation to bow to the child's wishes," he said. This child could not be said to be particularly mature for his years. He examined a number of cases where the views of children were considered, and where they were not found to be determinative.
In addition, there was little evidence that the child in this case had "settled" in Ireland, in the sense of forming an attachment to the community here. There was also significant evidence of subterfuge on the part of the mother. "The balance falls against the respondent."
Considering the issue of "grave risk" to the child, he stated that the test here was an extremely high one. It had not been pleaded in this case until very late.
The respondent's contention that the courts in Poland may not adequately protect the child was based on an unsubstantiated allegation against the prosecuting authorities there.
Mr Justice MacMenamin concluded that the child's long-term educational, psychological and care needs would be best met in Poland. "If his welfare is actually best met in the care of his mother, doubtless the Polish authorities will reach such a conclusion," he said.
"I consider it would be inappropriate to usurp the function of the authorities in the child's habitual residence by this court substituting its judgment on such welfare issues for those of the Polish courts."Accordingly, he granted the applicant the relief claimed, an order for the return of the child.
Anne Kelly BL, instructed by Ina O'Riordan, Clondalkin Law Centre (for the applicant); Marion McDonnell BL, instructed by Betty Dineen, Pope's Quay Law Centre, Cork (for the respondent)