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Grave risk of both physical and psychological harm to child if returned to Poland during pandemic

By: Hannah Godfrey BL

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High Court refuses application brought by father for the return of his child to Poland, holding that: (a) although the mother had not conceded that the removal of the child was wrongful, she had focused her submissions on the posterior issue of whether or not she had a defence notwithstanding that the removal was wrongful and the court would determine the application on that basis; (b) an order directing the return of the child to Poland would give rise to a grave risk within the meaning of Article 13 of the Hague Convention in respect of both physical harm and psychological harm; (c) in respect of physical harm, to require the child to engage in international travel during the coronavirus pandemic would expose him to a grave risk of contracting the disease; and (d) in respect of psychological harm, a further grave risk arose to the child from the fact that his pregnant mother, as his primary attachment figure, would have to choose between risking her own health or not accompanying him back to Poland.

Application for return of child to place of habitual residence - Child Abduction and Enforcement of Custody Orders Act 1991 (as amended) - Hague Convention - application brought by father alleging that mother wrongfully removed child from Poland in December 2018 - child now seven and a half years old - in May 2019 father's request for return sent from central authority in Poland to central authority in Ireland - in July 2019 High Court directed that child be interviewed by clinical psychologist and report prepared for the court on the interview - parties agreed to get an opinion on whether removal was wrongful from independent expert - subsequently, expert swore affidavit of laws opining that the mother did not have the right to determine unilaterally that the child's residence should be outside of Poland - no formal concession that removal was wrongful but hearing focused on mother's potential defences to the application for return where there had been wrongful removal, per Article 13 of Hague Convention - parties reached settlement and made sworn undertakings in December 2019 - mother subsequently did not return to Poland with the child as she had been advised by doctor not to travel while pregnant due to history of miscarriages - father took practical approach of resuming proceedings as if no settlement - in January 2020 High Court directed that an updated psychological report should be put before the court - whether return of the child would expose him to physical or psychological harm or otherwise place him in an intolerable situation ( the 'grave risk' defence) - whether refusal to make an order for return would have the effect of undermining the general policy objectives of the Hague Convention, including in particular the objective of deterring child abduction - whether necessary in the circumstances of the case to consider whether return in best interests of the child - whether child had expressed an objection to returning.

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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