M.S. -v- A.R. [2018] IEHC 45 (29 January 2018)

M.S. -v- A.R. [2018] IEHC 45 (29 January 2018)

The court found that the children were habitually resident in Poland at the time of their removal by the respondent to Ireland. The removal was in breach of the applicant's and the Polish courts' rights of custody under Article 3 of the Hague Convention. The respondent failed to establish any grave risk of harm or intolerable situation under Article 13(b), and while the older child objected to return, the objection did not outweigh the Convention's policy that custody issues should be determined in the State of habitual residence. The court ordered the return of the children to Poland.

Citation
[2018] IEHC 45
Parties
Applicant: M. S.; Respondent: A. R.
Jurisdiction
Ireland
Judgment Date
29 January 2018
Procedural Posture
Hague Convention Child Abduction Application / High Court Judgment
Outcome
Application granted; order for return of children to Poland.
Legal Topics
Child Abduction, Hague Convention, Habitual Residence, Custody Rights, Parental Consent
Family Law International Law Child Abduction Hague Convention Habitual Residence Custody Rights Parental Consent

Case Brief

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Parties

M. S.

Applicant

A. R.

Respondent

Procedural Posture

Hague Convention Child Abduction Application / High Court Judgment

Legal Issues

  1. 1 Whether the removal of the children from Poland to Ireland by the respondent was wrongful under the Hague Convention
  2. 2 Whether the children were habitually resident in Poland at the time of removal
  3. 3 Whether any Article 13 Hague Convention exceptions (grave risk, child's objection) apply to prevent return

Ratio Decidendi

The court found that the children were habitually resident in Poland at the time of their removal by the respondent to Ireland. The removal was in breach of the applicant's and the Polish courts' rights of custody under Article 3 of the Hague Convention. The respondent failed to establish any grave risk of harm or intolerable situation under Article 13(b), and while the older child objected to return, the objection did not outweigh the Convention's policy that custody issues should be determined in the State of habitual residence. The court ordered the return of the children to Poland.

Court Disposition

Application granted; order for return of children to Poland.

Orders

  • The children are to be returned forthwith to Poland in accordance with the Hague Convention.
  • The Polish courts are to determine all issues of custody, residence, and access.