Z.C. v A.G. [2020] IEHC 30 (30 January 2020)

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IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS

AND IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF

JUDGMENT of Mr Justice Garrett Simons delivered on 30 January 2020

1. This judgment is delivered in respect of a procedural issue which has arisen in

proceedings alleging the wrongful removal of a child from his place of habitual residence

(Poland). Proceedings of this type are colloquially referred to as “child abduction”

proceedings. It should be emphasised, however, that the hearing of the proceedings in

the present case has not yet concluded. Consequently, this court has not yet made any

2. In the event that this court were to find that the child had been wrongfully removed from

Poland by his mother, then one of the principal issues to be determined will be whether

any of the grounds for resisting an order for the return of the child has been met. These

grounds are set out at Article 13 of the Hague Convention. One of the grounds relates to

the views of the child himself. The High Court may refuse to order the return of a child if

it finds that the child objects to being returned, and has attained an age and degree of

maturity at which it is appropriate to take account of its views. In the case of an alleged

wrongful removal from a Member State of the European Union, there is an express

obligation on the court to ensure that the child is given the opportunity to be heard during

the proceedings, unless this appears inappropriate having regard to his or her age or

degree of maturity. (See Council Regulation (EC) No 2201/2003 (“the Brussels II

3. The High Court (Ní Raifeartaigh J.) had made an order pursuant to Article 11(2) of the

Brussels II Regulation directing that the child be interviewed by a clinical psychologist and

a report prepared for the court. This order is dated 1 July 2019. The child was duly

interviewed on 18 July 2019, and a written report prepared on 22 July 2019.

4. It had been envisaged that the proceedings would be heard and determined towards the

end of September 2019. Unfortunately, the hearing has been significantly delayed for

various reasons. The hearing commenced on 13 December 2019, and resumed before

me on Friday, 24 January 2020 following an attempted settlement. At the outset of the

resumed hearing, counsel on behalf of the mother sought liberty to submit a report which

had been prepared on behalf of the mother by a Polish psychologist. I refused that

application for the reasons summarised at paragraph 10 below. I did, however, invite

submissions from the parties as to whether an updated report should now be sought from

the court-appointed clinical psychologist. This judgment is given in respect of that issue.

5. These proceedings concern the legality of the removal of a young boy (“the child”) from

Poland. The child’s mother brought the child to Ireland on 8 December 2018, and the

child has been residing here since that date. The mother had initially argued that the

removal was lawful in circumstances where she asserted that she has the right to

determine the child’s residence as a result of certain orders made by the Polish courts on

5 November 2018. This interpretation of the court orders is disputed by the child’s father.

6. The father made a written request to the Central Authority of Poland that the child be

returned to his place of habitual residence, Poland. This request was conveyed to the

Central Authority of Ireland by the Central Authority of Poland on 29 May 2019.

7. The application had been listed before the High Court on a number of occasions in June

8. The High Court (Ní Raifeartaigh J.) made an order dated 1 July 2019 directing that the

child be interviewed by a clinical psychologist, and a report to the court on the interview

be prepared for the purposes of ensuring that the child is given the opportunity to express

their views and be heard in the proceedings. The form of the order follows the standard

9. A report dated 22 July 2019 was submitted to the court. The report’s conclusions are

10.1 [The child] has settled in the short time that he is in Ireland but stated that he

would like to talk to his father. From his account, there is a possibility that his

mother has not encouraged contact with his father. Outside of the difficulties in

respect of his father’s use of alcohol no other reason was voiced as to how his

parents separated. No reason was offered as to why he was living in Ireland, other

than mentioning that the amount of pollution from factories in Poland. [The child],

while having a level of understanding appropriate to a six and half year old, would

not be mature enough to understand the nuances of his parent’s relationship

difficulties. It is a distinct possibility that his understanding of the family narrative

is influenced to an extent by those adults with whom he is in regular contact.

10.2 Any negative experiences in his parents relationship, which he may have witnessed

is likely to have had an impact on his thinking. He has voiced a wish to speak with

his father and this should happen as soon as practicable. It is also important for his

self-identity that his biological father continues to play a role in his life regardless of

how small that may be. Any narrative from his mother or other important adults in

his life should not undermine the role of his father however marginalised he has

10. The progress of the proceedings was delayed pending the determination of an application

for legal aid on the part of the mother. The legal aid certificate issued towards the end of

July 2019, and the case was listed for hearing on 26 September 2019. In the event,

however, the matter could not be heard on that date, and it was instead listed for hearing

on 18 October 2019. On that occasion, counsel for the mother applied for an

adjournment in circumstances where the mother asserted that she had obtained a legal

opinion from a Polish lawyer which indicated that she had the right to determine the

residence of the child. It was also suggested that the father may have implicitly

consented to the removal of the child to Ireland, or, at least, to the mother having the

right to determine residence. The legal opinion was in the Polish language and a

translation was not available as of 18 October 2019. The adjournment application was

11. In the event, I decided to adjourn the proceedings in circumstances where, if the legal

position had been as suggested by the mother, then this would be largely determinative

of the question of whether there had been a wrongful removal. The parties undertook to

obtain an independent legal opinion from an agreed expert. It took some time for the

parties to obtain the independent legal opinion. An affidavit of laws has since been filed

on 25 November 2019. The independent legal opinion indicates that the legal position is

not as had been suggested on behalf of the mother. I say no more in relation to this

matter now, given that the question of whether the removal was unlawful remains to be

12. A new hearing date for the proceedings was fixed for 13 December 2019. The hearing

commenced on that date, and the proceedings had been part heard, when the parties

indicated to me that terms of settlement had been agreed. The terms of settlement were

handed into court, and the mother gave certain undertakings on oath to the court. The

intention was that the mother would return the child to Poland not later than 15 January

2020. In the event, this did not occur. The explanation offered by the mother for her

non-compliance with her undertaking is that she has recently discovered that she is

pregnant, and has been advised not to travel for medical reasons. It seems that the

13. In light of the non-implementation of the terms of settlement, the father has taken the

pragmatic approach that the hearing should be resumed, and a determination—one way

or another—made by the court on the merits of the case. This approach has made it

unnecessary—for the moment at least—to address the consequences of any non-

compliance with the sworn undertakings given to the court on 13 December 2019.

14. The hearing resumed on 24 January 2020. Counsel on behalf of the mother applied at

the outset of the hearing to have a psychological report in respect of the child admitted

into evidence. I refused this application in circumstances where, first, the report had not

been exhibited on affidavit; secondly, the qualifications of the author of the report had

not been stated; and, thirdly, the report seemingly dealt with matters far beyond the

question of the child’s views in relation to any proposed return to Poland, and, instead,

addressed wider family issues. (It should be explained that I did not view the report even

on a de bene esse basis, and that the shortcomings described above were ones identified

to me by counsel for both sides). In any event, it seems preferable that if any further

psychological evidence is to be adduced that it should come from a source independent of

15. I next invited submissions from the parties as to whether, given the lapse of time since

the court ordered report had been prepared in July 2019, it would be appropriate that a

further report should now be sought. Counsel on behalf of the mother submitted that an

up-to-date report should be prepared. Counsel on behalf of the father objected on the

basis, primarily, that further time would be lost in seeking and obtaining such a report,

and that there was sufficient information in the first report to allow the court to exercise

its jurisdiction. Counsel also submitted that much of the delay in the proceedings to date

had been as a result of the manner in which the mother had conducted the proceedings.

16. It should be reiterated that this judgment is confined to the narrow procedural issue as to

whether an order should be made directing that the child be interviewed again by a

clinical psychologist and a further report prepared for the court. This judgment makes no

findings in respect of the substantive issues arising in the proceedings in circumstances

where the hearing has not yet concluded. It may well be that if certain issues were to be

decided in favour of the mother, then it might not ultimately be necessary to address the

17. One of the grounds on which a court can refuse to return a child is where the child objects

to being returned, and has attained an age and degree of maturity at which it is

appropriate to take account of its views. This is provided for under Article 13 of the

“Notwithstanding the provisions of the preceding Article, the judicial or

administrative authority of the requested State is not bound to order the return of

the child if the person, institution or other body which opposes its return

a) the person, institution or other body having the care of the person of the

child was not actually exercising the custody rights at the time of removal or

retention, or had consented to or subsequently acquiesced in the removal or

b) there is a grave risk that his or her return would expose the child to physical

or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the

child if it finds that the child objects to being returned and has attained an age and

degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative

authorities shall take into account the information relating to the social background

of the child provided by the Central Authority or other competent authority of the

18. In a case, such as the present, involving an alleged wrongful removal from an EU Member

State, it is also necessary to comply with Council Regulation (EC) No 2201/2003 (“the

“2. When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be

ensured that the child is given the opportunity to be heard during the proceedings

unless this appears inappropriate having regard to his or her age or degree of

19. The procedure established by the High Court for ascertaining the views of a child is to

make an order directing that a child be interviewed by an independent expert and for that

expert to prepare a report on the interview for the court. The matters which are to be

addressed in this interview and report are set out in standard form in the order. This

order is accompanied by an “information note” which sets out general information for the

assistance of an interviewer who may not be familiar with applications made to the High

Court under the Hague Convention. As noted earlier, an order in this form was made on

1 July 2019 by the High Court (Ní Raifeartaigh J.), and the child was interviewed on 18

20. Counsel on behalf of the mother drew my attention to the recent judgment of the

Supreme Court in M.S. v. A.R. [2019] IESC 10. The unanimous judgment of the Supreme

Court was delivered by Finlay Geoghegan J. This judgment emphasises that where

evidence is put before a trial court that a child objects to being returned, then the judge

“60. Where, as here, the application for return is from a Member State of the EU, the

Court is obliged, pursuant to Article 11 of the Regulation, to give a child an

opportunity to be heard during the proceedings, ‘unless this appears inappropriate

having regard to his or her age or degree of maturity’. Where evidence is put

before a trial court that a child objects to return, then the judge should immediately

consider whether that evidence is sufficient to enable the court to determine the

issue of the child’s objections. If not, it should take appropriate steps to enable

appropriate evidence be obtained and given to enable the court decide all relevant

issues. Such proceedings are not purely inter partes adversary proceedings

between the parents. The court owes a duty to the children who are the object of

the application to hear the children and potentially to take into account their views

61. The court should then consider the issue of child’s objections in accordance with the

three stage approach identified by Potter P. in the English Court of Appeal in Re M.

(Abduction: Child’s Objections). The first question, as to whether or not objections

to return are made out, is a question of fact to be determined by a trial judge on all

the evidence adduced. The objection to return must, in general, be to the State of

habitual residence and not to living with a particular parent. However, in a limited

number of factual situations the two questions may be so inexorably linked as to be

incapable of separation. The second question, as to whether the age and maturity

of the child are such that it is appropriate for a court to take account of his views, is

also a question of fact to be determined by the trial judge. The trial judge should

make clear findings of fact in relation to the first two questions and, where feasible,

also make findings as to the reasons for and bases for the child's objections.”

21. Finlay Geoghegan J. returned to this issue towards the end of her judgment as follows.

“120. I wish to make three additional observations in relation to these proceedings. First,

the limited nature of the report of the interview by [the clinical psychologist] with A

created difficulties for the consideration by all courts of the child’s objections. The

current practice in the High Court of meeting the obligations of the Court under

Article 11(2) of the Regulation by making an order for relevant children to be

interviewed in relation to specific matters and seeking a professional view is a

practical way within our procedures of complying with the Article 11 obligation.

However, it would appear that [the clinical psychologist] may not have been fully

appraised of what was expected of her. It may be desirable that there are some

guidance notes available for a child psychologist or other expert who is asked to

conduct interviews and express their professional views to the Court in accordance

with such orders. It is important that the views of the child are communicated in

the words of the child and where possible with quotations. The purpose is to give

the child an opportunity to be heard by the Court. It is also important where

objections are voiced by a child that those are gently and carefully explored without

leading, so as to give the Court a real understanding of the reasons for and bases

of the objections. I would also add that where a court receives a report which, in

the court’s view may not enable it fully assess and make findings in relation to the

expressed objections of the child or permit the Court properly exercise its discretion

under Article 13 of the Convention, the Court should immediately, obviously giving

the parties an opportunity to be heard, decide whether oral evidence should be

sought from the person who conducted the interview or whether a further interview

22. Counsel for the father has made the objection that the delay in the proceedings to date is

entirely the fault of the mother. Reference was made to the fact that the hearing

scheduled for 18 October 2019 had to be abandoned in circumstances where the mother

had—mistakenly as it transpired—asserted that she had a legal opinion which indicated

that she had the right to determine the residence of the child. Counsel also emphasises

that the child is only seven years of age, and, accordingly, the weight, if any, to be

attached to his preference or objection is slight. It is also suggested that the child’s views

are unlikely to have changed given that the psychological assessment had been carried

out at a time when the child had already been in Ireland for a period of seven months (8

23. The principles governing the obligations of a trial judge to ensure that the child is given

the opportunity to be heard during child abduction proceedings which seek the return to

an EU Member State have been set out authoritatively by the Supreme Court in M.S. v.

A.R. [2019] IESC 10. On the facts of M.S. v. A.R., the concern that the evidence might

not be sufficient had arisen out of what were said to be shortcomings in the original

report which had been prepared by the clinical psychologist. In the present case, by

contrast, there is no suggestion that the report of 22 July 2019 is in any way insufficient.

Rather, the concern is a different one, namely that the views of the child may have

changed in the intervening six months since the interview and report of July 2019. The

length of time for which the child has been resident in the Irish State has almost doubled

since that date, and the child is now seven years of age. Moreover, the mother’s

pregnancy may have implications for the circumstances in which any return might occur,

i.e. there is some doubt as to whether the mother will be able to accompany the child. To

date, the medical advice seems to be to the effect that the mother should avoid travelling

in the first trimester of the pregnancy. (See the mother’s affidavit sworn in January

2020). It remains to be seen whether this medical advice will extend to the second, or

24. It seems to me that notwithstanding that the cause for the concern as to the sufficiency

of the expert evidence before the court is different than that in M.S. v. A.R, the same

principles apply by analogy. Given the lapse of time and change in circumstances since

July 2019, I do not think that it would be safe to rely solely on the psychological

assessment report of that date. In the absence of an updated assessment, I cannot be

satisfied that the evidence currently before the court is sufficient to enable me to make

findings in relation to the expressed objections of the child, so as to allow me to exercise

properly the discretion under Article 13 of the Hague Convention.

25. In reaching this conclusion, I have had regard to the careful submissions made by counsel

on behalf of the father. It occurs to me that the concerns expressed are matters which

more properly arise for consideration at a later point in the well-established three stage

test, which has been endorsed again by the Supreme Court at paragraph [61] of its

judgment in M.S. v. A.R. The first question to be considered is whether or not the

objections to return are made out. The second is whether the age and maturity of the

child are such that it is appropriate for the court to take account of those objections.

Assuming a positive finding in that respect, the court moves to the third question,

whether or not it should exercise its discretion in favour of retention or return.

26. The father’s contention that the age and maturity of the child are such that the weight, if

any, to be given to the child’s views is slight, is an issue which does not arise until stage

2. It is a condition precedent to the performance of the exercise required at stage 2 that

the court has sufficient evidence to provide it with a real understanding of the reasons

for, and basis of, the objections. This is to be achieved by way of the report of the court-

appointed clinical psychologist or equivalent expert. For the reasons set out above, I am

anxious to ensure that the assessment be updated. It may well be that an updated

assessment may simply confirm that the views of the child remain as before, but it cannot

be assumed that this would be so, given (i) the lapse of time since the date of the first

interview and report, and (ii) the change in the mother’s circumstances, i.e. her

27. The father’s contention that the delay in the proceedings is attributable to the mother’s

conduct is a matter to be considered at stage 3. The Supreme Court in M.S. v. A.R. has

emphasised, by reference to its own judgment in A.U. v. T.N.U. [2011] IESC 39; [2011] 3

I.R. 683, that, in exercising its discretion under Article 13, a court must have due regard

for the general principles and policies of the Hague Convention. The obligation is set out

in detail at paragraphs [58] to [64] of the judgment, and summarised as follows.

“65. Overall, a court, in exercising its discretion where child’s objections are made out

under Article 13 of the Convention, must be careful to weigh in the balance the

general policy considerations of the Convention which favour return and the

individual circumstances of the child who objects to return, in order to determine

what is, in the limited sense used, in the best interests of that child at that

moment. The weight to be given to the general policies of the Convention which

favour return and to the objections to return which were made and to other

relevant circumstances of the child may vary with time. As has been said, the

further one is from a prompt return, the less weighty the general Convention

policies will be. In exercising its discretion, a court must take care that it has

regard to the fact that the jurisdiction to refuse return is an exception to the

general policy and provisions of the Convention. The discretion must be exercised

with care, and in the best interests of the child, but not so as to undermine the

general policy objectives of the Convention, including deterrence of abduction.

66. In applications to which the Regulation applies, regard should be had to Articles

11(6) - (8) and the practical consequences of a refusal to return for the resolution

28. These issues have not yet arisen for consideration in the proceedings before me. At the

risk of belabouring the point, this is because this judgment is confined to the narrow

procedural issue of whether an updated assessment should be ordered. If and when it

becomes necessary to embark upon the consideration mandated under stage 3 of the

three stage test, the father will then be entitled to agitate his objections in terms of the

conduct of the litigation. I reiterate that this court has reached no concluded view on any

29. Given the lapse of time and change in circumstances since July 2019, I do not think that

it would be safe to rely solely on the psychological assessment report of 22 July 2019. In

the absence of an updated assessment, I cannot be satisfied that the evidence currently

before the court is sufficient to enable me to make findings in relation to the expressed

objections of the child, so as to allow me to exercise properly the discretion under Article

30. I propose to make an order directing that the child be interviewed again, and that a

report of this second interview be prepared for the court. The form of this order will be

modelled on the standard form of order employed in child abduction proceedings. The

court-appointed clinical psychologist is also to be provided with a copy of this judgment,

and asked to consider, in particular, the passages from the judgment of the Supreme

Court in M.S. v. A.R. [2019] IESC 10 cited herein. The fact that the mother is pregnant,

and that this may have implications for the circumstances in which the child might be

returned to Poland, i.e. the mother may not be able to travel with him, is something

which the court-appointed clinical psychologist will have to address with special

sensitivity. As explained by the Supreme Court in M.S. v. A.R., the objection to be

considered under Article 13 is an objection to return to the State of habitual residence,

and not an objection to living with a particular parent. However, in a limited number of

factual situations the two questions may be so inexorably linked as to be incapable of

31. In accordance with the standard form of order, the order of 1 July 2019 had directed the

clinical psychologist to canvass the views of the child in relation to inter alia the following

“(f) in the event of any objection to returning to live in the jurisdiction of Poland being

(g) if the child was to return to live in the jurisdiction of Poland any wishes as to how

32. I will discuss further with counsel whether any modification is required to the form of

order so as to provide further guidance to the clinical psychologist as to how the issue of

the mother’s pregnancy is to be addressed.

Result: Order made directing an updated assessment of child's views in Hague List case.

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