THE COURT OF Appeal has overturned the High Court’s refusal to order the return to Poland of young child abducted and taken to Ireland by his mother.
The three-judge appeal court’s unanimous decision means that the boy’s mother must return him to their native country in mid-September.
The boy’s father brought proceedings before the Irish courts after the boy, who cannot be identified for legal reasons, was taken by his mother and brought to live in Ireland in 2018.
The court heard that the boy was born in Poland. He and his parents had lived together as a family until the breakdown of the parents’ relationship.
A Polish court determined that the boy should reside with his mother, and established access arrangements for the father.
However, the boy’s father said his son was removed from Poland without his consent.
He said his former partner, who had begun a new relationship with another man, told him that she did not intend to return with the boy to Poland.
The father claimed that the boy had been removed from Poland and sought an order under the 1980 International Convention on Child Abduction, known as the Hague Convention, directing his son’s return to his habitual place of residence.
In a judgement given last May, High Court judge Justice Garrett Simons refused the application to return the boy to Poland on the grounds that if repatriated the boy would be exposed to a grave risk of physical or psychological harm.
The judge did so on the grounds including that the boy would be at risk due to problems with international travel arising out the Covid-19 pandemic. The boy could contract the disease if required to travel, the High Court held.
Other grounds advanced by the High Court for not order that the boy be returned to Poland included that his removing from his mother, and primary carer, would create an intolerable situation for him.
This was because his mother was unable to leave Ireland for medical reasons, as she was expecting a baby.
The fact the boy, who is aged less than 10 years, had spent almost two years in Ireland created a grave risk of psychological damage if returned to Poland at this stage, the High Court also found.
The boy had almost no meaningful relationship with his father, the court held, adding that serious allegations had been made against the father.
That decision was appealed to the Court of Appeal by the boy’s father who dispute the court’s findings that the boy would be in grave risk if returned.
The boy’s mother opposed the appeal.
Judgement
In its judgement the three Judge court comprised of Justice Seamus Noonan, Justice Ann Power and Justice Donald Binchy upheld the appeal.
The CoA was satisfied the boy was removed unlawfully by his mother and taken to Ireland and directed that the boy be returned to his homeland.
Giving the court’s decision Justice Power said that none of the matters which the High Court had regard for, either collectively or individually had reached the high threshold required to allow a defence made in Hague Convention proceedings to succeed.
Justice Power said the High Court had erred in his finding that travel during the pandemic constituted a grave risk of harm to the boy was made without regard to any sufficient or persuasive evidence.
The judge had further erred in finding that there was a grave risk of psychological to the boy if he was returned, the High Court’s finding was based on the “brief remarks of a clinical psychologist” in relation to the boy’s overall welfare.
The CoA noted that a comprehensive, considered and balanced welfare assessment of the boy had not been conducted.
The trial judge had also in his decision regarded allegations made by the boy’s mother against his father without having heard the other side, the CoA said.
The judge, by finding the boy’s relationship with his father was non-existent, had also failed to take into account the boy’s stated desire to have contact with his father.
That finding did not respect the principle that family ties may only be severed in “very exceptional circumstances”, the CoA added.
The court placed a stay on its order for a month.
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