Li. -v- La. Neutral citation (2009) IEHC 585 High Court Judgment was given on December 18th, 2009, by Mr Justice John Edwards.
Judgment
In a case taken under the Hague Convention on Child Abduction, Mr Justice Edwards ruled that two children, aged 10½ and seven, should return to Poland, their place of habitual residence, and to the custody of their German father, despite the fact that he might take them to Germany.
Background
The applicant, who is German, is the father of the two boys and the respondent, who is Polish, is their mother. The applicant is married to a German woman, with whom he has two older children.
The judge said that it was not clear how he had become involved with the Polish woman, but it seemed most likely at some stage he became estranged from his wife and took up with the Polish woman, with whom he had the two children, and they lived together in Poland for some years. Differences developed between them and the father moved back to Germany some time about 2006 or 2007, and was reconciled with his wife.
Differences arose between him and the Polish woman about custody of the children and, in February 2007, the father took the children to Germany.
Both parties began proceedings before the family courts in Poland, each seeking sole custody of the children and to limit the access of the other parent. The mother also took proceedings under the Hague Convention for the return of the children to Poland, which succeeded, and they returned in September 2007.
Disputes continued between the couple about maintenance and their respective behaviour.
The opposing sets of proceedings were consolidated into one and, in December 2007, Warsaw district court granted an interim order giving the father access on the first and third weekend of each month, while at the same time refusing a request of the mother to take the children to Ireland. It also ordered an assessment of the children, due to take place in October 2008. However, in September 2008, the mother abducted the children to Ireland without permission either of the father or the court.
The father then initiated the Hague Convention proceedings.
In the meantime, the custody proceedings came up in Poland in January 2009. The mother was not present and her father appeared on her behalf. He presented a letter to the court stating that she could not attend because of financial constraints, her work in Ireland and the boys’ school. The case was adjourned to February, when again she did not appear and sent a letter. It was further adjourned to March.
In the meantime, it emerged that she had visited Poland in January.
When challenged on this she sent a further letter admitting the visit, claiming that she could not attend the trial because of her work and the boys’ schooling and claiming that the father would not live in Poland and that the boys were afraid of him.
The case proceeded in her absence and in April, the Warsaw court ruled in favour of the father, granting him sole custody with no right of access to the mother.
The Hague Convention proceedings in Ireland began in September 2009, with a number of appearances in person by the mother. However, when the case came up for trial on December 17th, she did not appear. After attempts to locate her in the Four Courts complex were unsuccessful, the trial went ahead in her absence.
In November 2009, Ms Justice Mary Finlay Geoghegan had ordered an assessment of the children. This was presented to the court by Anne O’Connell, a consultant clinical psychologist. Both children stated they did not wish to return to Germany to live with their father. The older one said his father had a bad temper, shouted and cursed a lot, and frightened his mother. He also said his father had once hit him, giving him a black eye.
In court, the applicant denied he had ever hit the boy and alleged that the mother had a problem with alcohol and a history of keeping the children out of school. He said the mother was trying to influence the children against him and they had no stability in their lives, which they would have with him and his wife and their two older children in Germany.
Decision
Mr Justice Edwards said it was appropriate to grant the applicant the relief sought and return the children to Poland, as Poland was their place of habitual residence, even though the Polish custody order may entitle the father to take the children to Germany. What might happen after their return would depend on Polish law.
He said the court had regard to two important issues – whether they were at grave risk if they returned and their expressed wish not to return to Germany.
Having reviewed the jurisprudence in the area, he said that while any movement of children from one country to another was upsetting and may involve some harm, this is not the level of risk anticipated in the Hague Convention, which set the bar much higher.
He did not consider the children to be at “grave risk” and did not consider the allegation of violence against the older child as being “next or near” proven. If it happened that the child received a black eye that would be a very serious matter, but there was no medical evidence of it.
In relation to the views of the children, these were not the determining factors. He also took on board a number of judgments where it was stated that it was important for the formation of a child, and especially of a male child, that he have the society of his father if at all possible. He was not satisfied that it was contrary to the interests of these children that they had the society of their father.
The full judgment is on www.courts.ie
The plaintiff was represented by the Law Centre in Tallaght; the respondent represented herself.