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Children not to be returned to Poland despite wrongful removal

By: Mark Tottenham BL

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Supreme Court: (a) allows in part an appeal from the Court of Appeal concerning an application to return two children to Poland, where the Court of Appeal had failed to take into account certain matters including the general policies and objects of the relevant international convention and evidence relating to the mother having permitted the father to take the children to Poland after their relationship broke down; (b) exercises its own discretion to refuse to order the return of the children to Poland, on the grounds that the children had lived in Ireland for their whole lives apart from 14 months spent in Poland, and that it could not be in their best interests to be returned; and (c) observes that the lack of legal representation of the mother at the initial hearing and the first appeal, and the failure of the child psychologist's report to address all relevant matters, had hindered the correct and expeditious determination of the application.

Finlay Geoghegan J (nem diss): Child abduction - application for return of children to Poland - order granted in High Court - appeal allowed by Court of Appeal - Child Abduction and Enforcement of Custody Orders Act 1991 - Council Regulation (EC) No 2201/2003 of 27 November, 2003 - Hague Convention - children born in Ireland to Polish parents - return of father to Poland with children in 2015 - custody proceedings pending in Poland - children brought to Ireland by their mother in 2017 - history of proceedings - evidence from clinical psychologist - whether parents had custody rights in Ireland or Poland - habitual residence - preference of child to remain in Ireland - whether grave risk to children - whether trial judge had erred in approach to consideration of child's objection to return to Poland - whether Court of Appeal had erred in not remitting matter to trial judge - whether Court of Appeal had erred in exercising its own discretion on the matter - approach to question of child's objections - three stage approach: whether objection to return of country of habitual residence; whether age and maturity of child were such as to take views into account; discretion of court - lack of legal representation at initial hearing - limited nature of psychologist's report - best interests of child - additional observations.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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