Trusted by the judiciary, government lawyers, prosecutors, and many leading counsel. Click here to request a subscription.
|
or click here to request site subscription to search and view all judgments |
Court of Appeal allows appeal and overturns a decision of the High Court refusing to return a child to Poland because to do so would expose him to ‘a grave risk’ of physical or psychological harm or otherwise would place him in an intolerable situation, and makes an order that the child should be returned to Poland with a stay on the order until after the birth of the mother's baby, on the grounds that: (a) the trial judge erred in law in failing to apply an appropriately high threshold in his assessment of the grave risk defence; (b) any increased risk of the child contracting Covid-19 (whether from air travel or from being in Poland), if such were established, is not sufficient in itself to prove that a grave risk of physical harm would arise in the event that a return order were to be made; (c) the trial judge erred in arriving at such a far-reaching conclusion about the effective end of the child’s relationship with his father in circumstances where this finding was based on a relatively brief meeting in which a one sided narrative had been received and no comprehensive welfare assessment had been conducted; and (d) none of the matters to which the trial judge had regard either individually or collectively has reached the high threshold required to be reached before a defence can succeed.
Power J (nem diss): Appeal of a decision of the High Court refusing to order the return of a child to Poland because to do so would expose him to ‘a grave risk’ of physical or psychological harm or otherwise would place him in an intolerable situation - Child Abduction and Enforcement of Custody Orders Act 1991, as amended - Convention on the Civil Aspects of International Child Abduction 1980 ("the Convention") - appellant is the father of the child - the respondent is the mother of the child - the child's parents separated and his mother brought him to live with her in Ireland when he six years old without the consent of his father - it was accepted by both parties that this was a ‘wrongful’ removal under Article 3 of the Convention - whether an exception under Article 13(b) of the Convention had been established - whether the return of the child would expose him to physical or psychological harm or otherwise place him in an intolerable situation - whether the return would be in the child’s best interests - whether the mother's pregnancy prevented the child from being returned - whether travel during the Covid-19 pandemic pandemic would expose the child to a grave risk of contracting the disease - appeal allowed - Court orders that the child be returned to Poland - a stay placed on the order until the respondent gives birth to her child.
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.
The only subject matter index for all Irish judgments over the past thirteen years. Click here to request a subscription.
Register Now