\ 
THE SUPREME COURT 
O'Donnell J. 
McKechnie J. 
MacMenamin J. 
Dunne J. 
Finlay Geoghegan J. [Appeal No: 2018/115] 
IN THE MATTER OF THE CHILD ABDUCTION AND 
ENFORCEMENT OF CUSTODY ORDERS ACT, 1991 
AND IN THE MATTER OF THE HAGUE CONVENTION ON 
THE CIVIL ASPECTS OF INTERNATIONAL CHILD 
ABDUCTION SIGNED AT THE HAGUE ON THE 25TH DAY OF 
OCTOBER 1980 
AND IN THE MATTER OF COUNCIL REGULATION (EC) 
NUMBER 2201/2003 OF 27 NOVEMBER 2003 
AND IN THE MATTER OF AS AND MM S, CHILDREN 
BETWEEN 
MS 
APPLICANT 
AND 
AR 
RESPONDENT 
Judgmen t of Ms. Justice Finlay Geoghegan delivered on the 19th 
day of February, 2019. 
Judgment by Finlay Geoghegan
2 
1. This is an appeal from an order of the Court of Appeal (Irvine J., Hogan J. and 
Whelan J.) of 2 July 2018, which allowed an appeal from an order of the High Court 
(McDermott J.) made on 16 February 2018, that the children named in the title be 
returned to the jurisdiction of the courts of the Republic of Poland. The order of the 
High Court was made for the reasons set out in a written judgment delivered on 29 
January 2018: [2018] IEHC 45. The order of the Court of Appeal was made for the 
reasons set out injudgment of Whelan J., delivered on 21 June 2018: [2018] IECA 
181. In substance, it refused an order for the return of the children. 
2. The proceedings are an application brought by the father of the children, to 
whom I will refer as A and M, pursuant to The Hague Convention on the civil aspects 
of international child abduction ("the Convention"), as implemented in Ireland by the 
Child Abduction and Enforcement of Custody Orders Act 1991("the1991 Act") and 
Council Regulation (EC) No 2201/2003of27 November, 2003 ("the Regulation") , 
for the return of the children to Poland, as the Member State of their habitual 
residence. The respondent is the mother of the children. 
Background Facts 
3. The father and mother are Polish nationals. The father came to Ireland in 2007 
and the mother came in 2008. They commenced living together. They did not marry. 
In April 2010, A was born in Ireland and in February 2013, M was born in Ireland. 
The parents and children lived together in Ireland until November 2015. 
4. In November 2015, unhappy differences arose between the parents. The father 
decided to return to Poland. With the consent of the mother, he took both children 
with him to live in Poland in November 2015. There was a dispute in the High Court 
as to the period of time for which the mother gave consent to this, but that is no longer 
3 
an issue in the appeal. The mother remained living and working in Ireland after the 
father and children left. 
5. In Poland, the children lived initially with the father and his family and later, 
with the father and his new partner and her child in an apartment that he leased. A 
attended school there. 
6. The mother visited Poland and the children on three or four occasions in 2016. 
It appears that during 2016, she sought the father's consent to the children returning 
with her to Ireland. He refused to give this. Relations between the parents appear to 
have further deteriorated in late 2016. 
7. In September 2016, the father commenced custody proceedings in Poland. On 
2 November 2016, the mother commenced proceedings in Poland under the 
Convention for the return of the children to Ireland. 
8. In December 2016, the mother visited Poland and during that visit, with the 
father's consent, she took the children to stay with her at her mother's home, but did 
not return them. 
9. The mother brought the children to Ireland on 5 January 2017 and informed 
the father on 6 January that they were in Ireland. Since the children's return to 
Ireland with the mother, they have lived with her and, for some or all of that period, 
with a partner of the mother. The children have been at school in Ireland. 
10. The mother's application under the Convention in Poland was dismissed at 
first instance and on appeal. The father's custody proceedings in Poland, the Court 
was informed, are still extant but this Court has no information about what, if any, 
progress has been made in those proceedings during the course of this Convention 
4 
application in the Irish courts. The father came back to work and live in Ireland 
during the Irish proceedings. However, he was not present at the hearing of the 
appeal in this Court and the Court was informed by his Counsel that he has returned 
again to Poland. 
The Proceedings to Date 
11. The proceedings were issued on 14 August 2017, and grounded, as is current 
practice, on an affidavit of a solicitor from Smithfield Law Centre, who received 
instructions from the Irish Central Authority to make the application on behalf of the 
father. The grounding affidavit discloses that the Law Centre received instruction s 
from the Central Authority on 19 June 2017 by letter, which enclosed documents 
furnished to the Irish Central Authority by the Polish Central Authority, including a 
letter from the Ministry of Justice of the Republic of Poland, dated 29 May 2017. The 
documents included a completed application form by the father containing a request 
pursuant to The Hague Convention, dated 20 February 2017. I set out those dates as, 
unfortunately, there has been significant delay in the commencement of these 
proceedings and to a lesser extent, in its subsequent pursuit, the result of which was 
that, when the proceedings were heard by the High Court on 15 January 2018, the 
children had been back in Ireland for just in excess of one year since the date of the 
alleged wrongful removal in early January 2017. It is not relevant to this appeal to 
seek to identify what was the cause of the delay, save to observe that it does not 
appear to have been caused by the mother. However , the fact of the delay meant that 
the children had been back living in Ireland for approximately 17 months at the date 
of judgment in the Court of Appeal, and by the date of the hearing of this appeal, just 
over two years had passed since the date of the wrongful removal. 
'· 5 
12. The summons was served on the mother on 18 August 2017. It was returnable 
for 6 September 2017, and it appears from the order made on that date, the mother 
appeared before the High Court. It also appears from an affidavit of the mother, 
sworn in connection with her leave application to this Court and filed on 8 November 
2018, that she had, prior to 6 September 2017, made an application for legal aid in 
connection with these proceedings. She exhibited to this Court a letter from the 
Newbridge Law Centre dated 6 September 2017, informing her that their head office 
had refused her application under subss. 28(2)(b) and (d) of the Civil Legal Aid Act 
1995 for two reasons; the first was that she did not have, as a matter oflaw, 
reasonable grounds for defending the proceedings and that there was then "no 
evidence to suggest that the Irish courts will not order the return of the child to 
Poland"; and secondly, that the proceedings were not "the most satisfactory means of 
achieving the outcome sought" by her, as the Legal Aid Board considered the 
outcome sought by her was most satisfactorily achieved "by means of proceedings in 
the Polish courts". 
13. The absence of legal representation for the mother before the High Court and 
the Court of Appeal by a lawyer practising in Ireland and experienced in the complex 
issues arising in proceedings such as the present, has undoubtedly, contributed to the 
manner in which the proceedings were heard and determined in the High Court and 
the Court of Appeal. The mother has had the assistance of a "McKenzie friend", Mr. 
Ligezowski, a Polish lawyer who is resident in Ireland and speaks English. Both the 
High Court and the Court of Appeal exceptionally permitted Mr. Ligezowski to 
address them on the mother's behalf. This was helpful, but such assistance was 
limited and did not equate to representation by a lawyer practising in Ireland. As 
appears from the later part of this judgment , the law relating to applications under the 
6 
Convention, as implemented by the 1991 Act and the Regulation, for the return of 
children allegedly wrongfully removed from their State of habitual residence , is well 
established by judgments of the Supreme Court and other courts in this jurisdiction 
and the United Kingdom. However, it is also a complex area oflaw, which remains 
the subject of development and its application to the facts of each individual case 
requires careful consideration. 
14. In this Court, the mother, when leave to appeal was granted, had the benefit of 
The Supreme Court Legal Assistance/Representati on Scheme. Initially, she was 
represented by a solicitor nominated by the Law Society in accordance with that 
scheme, and counsel nominated by the Bar Council. The Legal Aid Board helpfully 
decided that it would take over the solicitor's role and she was represented at the time 
of the written submissions and the oral hearing by a solicitor from a law centre, senior 
counsel and junior counsel, all of whom are experienced in so-called 'child abduction ' 
proceedings. 
15. The initial affidavit of the mother was filed in the High Court on 20 Septembe r 
2017. On 1November2017, the High Court (Ni Raifeartaigh J.) made an order 
pursuant to Article 11(2) of the Regulation, that a Dr. Nolan, a clinical 
psychologist/psychotherapist, interview the elder child A, in respect of certain matters 
and report to the Court on the interview , "for the purposes of the Court ensuring that 
the child is given the opportunity to express his views and be heard in the 
proceedings". The order was in a form used in the High Court in return applications 
for many years. 
16. The substance of the order made by the High Court on 1November2017 is 
divided into two parts. The first part is an order that A be interviewed by Dr. Nolan 
7 
for the purpose of the Court ensuring that he is given the opportuni ty to "express his 
views and be heard in the proceedings'', in relation to eight matters identified in paras. 
(a) -(h) inclusive. The matters at (c) -(e) and (h) are relevant to the issues on appeal 
and are set out with Dr. Nolan's response below. 
17. The second part of the order required Dr. Nolan to "assess" A and to report to 
the Court with her professional views on five matters, four of which she responded to 
in her report to the Court. She did not include any response in relation to the fifth 
matter, which was to report on any other matter which she considered "should be 
brought to the attention of the Court arising out of the said interview and assessment 
for the purpose of its decision in these proceedings". 
18. The order also provided that Dr. Nolan be furnished with the summons, 
affidavits and exhibits. At the time, the only affidavits appear to have been the 
grounding affidavit of the solicitor for the father and the first affidavit of the mother. 
The father's first affidavit was filed in December 2017. 
19. The interview was conducted through an interpreter on 7 November 2017, and 
the report to the Court, unusually in my experience, records in substance the order 
made and simply places answers in respect of each of the sub-paragraphs. Because of 
the importance of the information made available to the Court I am setting out in full 
the matters identified and responses made to them at paras. (c), (d), (e) and (h) of the 
first part of the order and the matters identified and Dr. Nolan's response in relation to 
her assessment and professional views contained in the second part of the report:-
"( c) His wishes in relation to his future care and living arrangements 
including where he would like to live; 
[A] would like to live in Ireland with his mother, sister and uncle. 
8 
( d) If those wishes do not include living in Poland whether he has any 
objection to returning to live in Poland; and 
[A] objects to returning to live in Poland with his father because he 
alleges his father beats, screams at him and grabbed him. 
( e) In the event of any objection to returning to live in Poland being 
expressed, his reasons for the objections; 
[A]'s reasons for his objections to returning to Poland are as follows: 
He stated his father screams at him and beats him. 
(h) Any other information he may wish the Court to take into account in 
deciding the application that he be returned to Poland. 
On 7 November, 2017, through the interpreter [A] expressed his wish to 
stay in Ireland on four occasions ." 
20. The matters on which Dr. Nolan was asked to express her professional view, 
and her responses are recorded in the second part of the report, at paras. 1-4:-
1. The degree of maturity of the said child. 
"On 7.11.2017, [A] aged seven years, seven months was able to 
articulate his thinking and wishes. [A]'s level of maturity appeared to be 
that of the typical seven year old child." 
2. Whether the child is capable of forming his own views and if so a 
general description of matters about which he appears capable of 
forming his own views. 
"At the meeting of 7.11.2017, [A]'s presentation suggested he was and is 
capable of forming his own views. He spoke about his life in Poland, his 
life in Ireland, the sports and activities he likes, and his friends." 
3. Whether the child objects to being returned to Poland. 
9 
"[A] objects to being returned to Poland saying: 'I am happy here, I want 
to stay here because I want to stay here. I have fun here. I like my 
friends here. I have a playground, I have my Mum, sister, [T] my uncle 
here. I like living with Mum and [T] and my sister'." 
4. If the child does object to being returned to Poland, 
(a) The grounds of such objection and in particular whether it relates 
to an objection to living in Poland and/or a desire to remain in 
Ireland or whether it relates to an objection to living with or living 
in the vicinity of a particular parent and/or wish to live with the 
other parent. 
"[A] Objects to living in Poland with father. [A] stated his father 
'shouted' at him and 'beat' him. 
[A]'s objection to returning to Poland was based on his [A]'s experience 
and recall of life in Poland with his father. 
[A] wants to remain in Ireland with his mother, [T] and sister. 
[A]'s wish is unambiguous, it is to live in Ireland with his mother, sister 
and [T] ([T] is his mother's partner). 
[A] did not express any wish to live in Poland or to have his father live 
near him in Ireland." 
(b) Whether any objections have been independently formed or result 
from the influence of any other person including a parent or 
sibling. 
"[A]'s objections to being returned to Poland as clearly articulated by 
him are/were based on his experience of being a child and in the care of 
his father in Poland. 
At no stage during the meeting did [A] indicate or allude to any 
influence from his mother or sibling of 'uncle' [T] 
10 
At the meeting of 7.11.2017 , [A] did make reference to having 'good 
friends in school in Poland, I played with them and visited them at 
home. I have friends in school in [N]. I have fun here with my friends. 
I have a playground.' 
[A]'s wish is 'to have a normal house with few rooms and a garden in 
Ireland with Mum, Uncle [T] and my sister'." 
21. Dr Nolan's report was furnished to the Court. Neither party sought to have Dr. 
Nolan give oral evidence in relation to her interview with A, or in relation to those 
matters upon which she expressed her professional view. It appears that, again in 
accordance with current practice, the report itself was not furnished to either party. It 
was available to the lawyers for the applicant , who will have read the contents to the 
father. I assume that the contents were also read to the mother and subsequent to the 
High Court judgment and order, it was made available to her legal representatives in 
Poland and the Polish courts, and ultimately she appears to have obtained a copy in 
the course of her appeal to the Court of Appeal. If the mother had had legal 
representation in the High Court, then those lawyers would also have had Dr. Nolan's 
report available to them and may have taken further steps such as seeking to have her 
give oral evidence. 
22. The High Court hearing was on the affidavit evidence and the report of Dr. 
Nolan. It appears to have been accepted at all times that, in accordance with Irish 
law, the father was not a guardian of the children and did not have custody rights as 
he was not married to the mother. The mother was the sole guardian and had custody 
rights. However, it was also accepted that in accordance with Polish law, both parents 
had rights of custody. The issues in dispute in the High Court between the parties 
were principally; (1) whether the children were habitually resident in Poland in early 
11 
January 2017, when the mother brought them to Ireland; (2) whether, in late 
December 2016, the father had consented to the mother bringing the children to 
Ireland; and (3) whether the return of the children to Poland to live with their father 
would amount to a grave risk or place them in an intolerable situation, within the 
meaning of Article 13 of the Convention. A further issue was identified by the High 
Court judge in hisjudgment, by reason of the report from Dr. Nolan of the interview 
with A and the fact that he had stated to her that he objected to returning to Poland. It 
must be emphasised that it does not appear that there was any significant focus on A' s 
objection to return by the parties or their representatives as a separate issue in the 
High Court. The lack of Irish legal representation for the mother may have 
contributed to this. The children did not have any separate representation. 
23. The High Court correctly identified that habitual residence is a question of fact 
and decided that the children were habitually resident in Poland immediately prior to 
their removal to Ireland in early January 2017. The Court also decided that the father 
was exercising custody rights in relation to the children which he held in accordance 
with Polish law and accordingly, concluded that the removal of the children without 
his consent was a wrongful removal from their country of habitual residence, within 
the meaning of Article 3 of the Convention. The High Court carefully considered the 
defence of grave risk pursuant to Article 13(b) of the Convention and concluded that 
it was not satisfied that the return of the children to Poland "places them at a grave 
risk or places them in an intolerable situation". 
24. The High Court judgment also considered the objection to returning to Poland 
expressed by the elder child A, in his interview with Dr. Nolan. A was seven years 
and seven months old at the date of the interview. As appears from her report, Dr. 
12 
Nolan's professional view was that A had a level of maturity of a typical seven-year­
old and that his presentation at the meeting was that he was capable of forming his 
own views. The High Court judge concluded at para. 63 that "[t]he Court has no 
reason not to accept that the child's views are those expressed in the report". He had 
previously indicated that he had considered the objection made by A to return to 
Poland and to his father's custody, and his preference to remain in Ireland with his 
mother, and stated at para. 62, "[h]e has attained a degree of maturity at which it is 
appropriate to take his views into account and I do so". Those are findings of fact 
made by the High Court. 
25. The alleged failure of the High Court judge to consider, separately and 
distinctly from the defence of grave risk, the position under Article 13 of the 
Convention by reason of the child's objections formed part of the appeal to the Court 
of Appeal and the ground most relevant to this appeal. 
26. Whelan J. in her judgment, with which the other members of the Court 
concurred, concluded that the trial judge in his judgment was in error in his approach 
to Article 13 of the Convention, consequent on his finding that A objected to 
returning to Poland and was of an age and degree of maturity that it was appropriate 
to take his views into account. She concluded at para. 64 that the trial judge, in error, 
believed that before he could exercise his discretion in favour of the children 
remaining in this jurisdiction, he would have to find that the basis for the objections 
constituted either a "grave risk" or an "intolerable situation" within the meaning of 
Article 13(b ). She referred to the well-established principle that the defence that a 
child objects to return under Article 13 is entirely separate from the defence of grave 
risk and cited Re S (A Minor) (Abduction : Custody Rights) [1993] Fam. 242. 
13 
27. The Court of Appeal, having concluded that the trial judge was in error in his 
approach to the discretion given him under Article 13 of the Convention by reason of 
his finding that A objected to return and was of an age and degree of maturity where it 
was appropriate to take his views into account, considered next what the Court of 
Appeal should do. At para. 75, she stated:-
"75. Whilst it is open to this Court to remit the case to the High Court, in 
light of Article 13 of The Hague Convention, for a further exercise of 
discretion by the trial judge, it is noted that the matter proceeded in the 
High Court on affidavit and no oral evidence was heard. Given the need 
for expedition and the harmful impact on children of uncertainty arising 
from litigation delays this Court is in as good a position as was the trial 
judge to exercise discretion." 
28. The Court of Appeal identified one further error in relation to the High Court 
judge's approach to the consideration of the child's objections under Article 13 of the 
Convention. Whelan J. considered that the trial judge erred in considering that the 
decision of the mother to place A in the care of the father in November 2015, and the 
father's relationship with A in Ireland prior to that date, could be relevant to the 
weight to be attached to the objections of A to return to Poland and to the care of his 
father, or otherwise material to the exercise of the court's discretion. That alleged 
error is disputed by the father and was the subject of a submission to this Court. 
29. The judgment of the Court of Appeal considered the existing law in relation to 
the proper approach by a court to the question of a child's objection to returning to the 
country of habitual residence and the exercise by the Court of its discretion where the 
objections are found to exist and the child is of an age and degree of maturity where it 
is appropriate to take account of his or her views. The judgment also sets out the 
factors taken into account and the reasons for which the Court of Appeal concluded 
14 
that, on the facts of the appeal, the discretion should be exercised in favour of refusing 
to make an order for the return of A to Poland. These are considered later. 
30. The decision of the Court of Appeal in relation to the second child, M, who 
was not interviewed by Dr. Nolan by reason of her age in November 2017, was that to 
now separate her from her elder brother for the first time in her life and order her 
return would place her in an intolerable situation with the meaning of Article 13 of the 
Convention. Hence, the Court also refused to make an order for return in respect of 
her. That decision, which is consequential on the decision not to return A by reason 
of his objections, is properly not disputed on behalf of the father and there is no 
separate appeal against that part of the decision of the Court of Appeal. These two 
children have lived together all their lives from birth and should be permitted to 
continue to do so. 
31. The mother also appealed the High Court decisions on habitual residence and 
grave risk to the Court of Appeal. The Court of Appeal upheld those decisions of the 
High Court and they are no longer in issue in this appeal. 
32. The determination of this Court of 11 October 2018 granted leave to the father 
to appeal the decision of the Court of Appeal on the following issues:-
"(i) Whether the Court of Appeal was correct to approach the case de nova 
and exercise its own discretion on the materials before the court; 
(ii) Whether the information and evidence before the court was sufficient to 
permit the court to exercise its discretion under Article 13 to refuse to 
order the return of the children to Poland; 
(iii) If so, whether the Court of Appeal was correct to exercise its discretion 
to refuse to order the return of the children." 
15 
33. As already stated, the mother has had the benefit of legal representation since 
leave was granted. The Court has hence had the assistance of written and oral 
submissions from counsel on behalf of the father and the mother. There is no new 
evidence before this Court. The only new fact referred to by counsel is that the father 
is no longer residing and working in this jurisdiction as he was, as disclosed by his 
affidavit evidence, at the time of the High Court hearing. Nothing turns on that 
particular change of fact. 
34. The focus of the appeal following the written submissions and in the course of 
the oral submissions related to the following issues:-
(i) Was the Court of Appeal correct to conclude that the High Court judge 
had erred in his approach to the consideration of the of A's objections to 
return to Poland under Article 13 of the Convention? 
(ii) If that conclusion was correct, did the Court of Appeal err in not 
remitting the proceedings to the High Court, with or without directions, 
rather than considering the issue raised by A's objections on the basis of 
the evidence before the High Court and exercising its own discretion as 
to whether or not an order for return should be made? 
(iii) If it was permissible for the Court of Appeal to exercise its own 
discretion on the evidence in the proceedings, was there any error in its 
approach to the exercise of its discretion or in the decision reached? 
35. Prior to considering these issues, it is appropriate to set out the law in relation 
to the determination of an application for return under the Convention, as 
implemented by the 1991 Act and in accordance with the Regulation, where the 
16 
evidence before a court includes an objection by a child to a return to his or her State 
of habitual residence. 
The Law 
36. Section 6 of the 1991 Act provides that the Convention is to have the force of 
law in the State. In accordance with Article 1, the objects of the Convention are:-
"(a) to secure the prompt return of children wrongfully removed to or 
retained in any Contracting State; and 
(b) to ensure that rights of custody and of access under the law of one 
Contracting State are effectively respected in the other Contracting 
States." 
37. These objects are given effect to by the succeeding Articles of the Convention. 
Article 2 imposes an obligation on Contracting States to take "all appropriate 
measures" to secure the implementation of the objects and to use the "most 
expeditious procedures available". Article 11 imposes an obligation on judicial and 
administrative authorities to act expeditiously in proceedings for the return of 
children. It also gives a right to an applicant or either Central Authority to request a 
statement of reasons for delay where a judicial authority has not reached a decision 
within six weeks from the date of commencement of the proceedings. 
38. Wrongful removal and retention are defined by Articles 3 and 4 of the 
Convention. There is no need to consider this in detail in this appeal as, on the 
findings made by the High Court and upheld by the Court of Appeal, it is no longer in 
issue that the children were wrongfully removed, within the meaning of Article 3, 
from Poland to Ireland on or about 5 January 201 7. This follows from the decisions 
that they were habitually resident in Poland in early January 2017, that their father 
17 
was then exercising rights of custody which he held under Polish law and that he did 
not consent to their removal to live in Ireland. 
39. Article 12 of the Convention imposes a mandatory obligation on a court, 
where return proceedings are commenced within one year from the date of the 
wrongful removal, to order the return of a child who has been wrongfully removed 
from his State of habitual residence. However, Article 13 then provides:-
"13. 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 establishes that:-
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 retention; 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 child's habitual residence." 
40. The provisions of Article 13 of the Convention are commonly referred to as 
"Article 13 defences". Insofar as they may be considered defences, as appears, it 
18 
provides firstly that a court is not bound to order the return of a child where a person, 
institution or other body who opposes its return establishes one of the matters referred 
to in paras. (a) or (b). Those may well be properly characterised as defences insofar 
as there is an obligation imposed on the person opposing return, normally the 
respondent to an application, to establish one of the matters referred to therein before 
a court is no longer bound by the mandatory provisions of Article 12. 
41. The provision in relation to a child's objections is expressed in somewhat 
different terms. As appears, it separately provides that a court "may also refuse to 
order the return of a child if it finds that the child objects to being returned ... " 
(emphasis added). Whelan J. is correct in stating that it is well established that the 
jurisdiction of a court to refuse to order the return of a child if it finds that the child 
objects and has attained an age and degree of maturity at which it is appropriate to 
take account of its views, is separate and distinct from the defence of grave risk 
referred to in Article 13(b) of the Convention. The second matter to which I would 
draw attention is that a court's jurisdiction to refuse to return by reason of a child's 
objections is established when "the court finds", as distinct to when the party who 
opposes the return "establishes that", as is the position in relation to the defences 
identified in Articles 13(a) and (b). 
Hearing a Child 
42. As Poland and Ireland are both Member States of the EU, Article 11 of the 
Regulation also applies to the father's application for the return of the children. 
Article 11 (2), which is relevant to the procedures followed in the High Court in this 
application, provides:-
19 
"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 maturity." 
43. Article 11 (2) of the Regulation imposes on the Court a mandatory obligation 
to provide a child with an opportunity to be heard, subject only to the exception where 
"this appears inappropriate having regard to his age or degree of maturity" . This 
obligation was the subject of consideration by me in the High Court in MN v. R.N 
(Child Abduction) [2008] IEHC 382, [2009] 1 I.R. 388. That decision concerned a 
disputed application pursuant to Article 11(2) to give a six-year-old child an 
opportunity to be heard by being interviewed by a relevant expert and a report of the 
interview to the Court admitted as part of the evidence. I concluded that the six-year­
old child should be given the opportunity to be heard. The approach set out is cited 
with apparent approval by Denham C.J. in A. U v. TN U (Child Abduction) [2011] 
IESC 39, [2011] 3 I.R. 683, at 695. As pointed out therein, giving a child an 
opportuni ty to be heard is not to be confused with either a determination of what 
weight should be attached to any views expressed, or a decision as to whether or not 
to give effect to the child's views when expressed . It is important to stress that the 
obligation on a court to give a child an opportunity to express their views arises in all 
return applications between EU Member States where the requested court may be 
making an order for summary return pursuant to Article 12 of the Convention. Whilst 
it also applies where Article 13 of the Convention may be applicable , the right of a 
child to be heard is not dependent on the facts adduced indicating the possibility of an 
Article 13 defence. As happened in these proceedings, the child's objections may be 
disclosed to the Court when the child is heard. 
20 
Child's Objections 
44. In CA v. CA (otherwise C McC) [2009] IEHC 460, [2010] 2 I.R. 162, in the 
High Court I set out with approval the three stage approach to consideration of a 
child's objections in a return application, as identified by the English Court of Appeal 
(Civil Division) in Re M (Abduction: Child's Objections) [2007] EWCA Civ 260, 
where, at para. 60, Potter P. stated:-
"60. Where a child's objections are raised by way of defence, there are of 
course three stages in the courts consideration. 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 is 
appropriate for the court to take account of those objections (unless that 
is so, the defence cannot be established). 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 ... " 
45. It is now in excess of nine years since I delivered the above judgment and in 
the intervening period, many judgments have considered the question of how a court 
should approach the assessment of the objections of a child to return on an application 
under the Convention and the Regulation. I am not aware of any dissent from the 
view that the three stage approach identified by Potter P. is the correct one. The facts 
of this appeal suggest a preliminary question for a trial judge in relation to the 
adequacy of the evidence later discussed. The first two stages identified are primarily 
questions of fact or inferences from primary facts for decision by a trial judge. It is 
the third question which most often presents a court with complex and difficult issues. 
46. That question was comprehensively considered by this Court in A. U v. 
TN U., in which the single judgment was delivered by Denham C.J. (Murray, 
Hardiman, Fennelly and O'Donnell JJ. concurring). 
21 
47. That appeal concerned a decision by the High Court (Birmingham J.) to refuse 
to return two young children to the State of New York by reason of the children's 
objections to being returned. The two boys were aged eight and seven respectively on 
the date upon which they were interviewed, pursuant to an order of the High Court 
made by me on 18 May 2011. That order was to my recollection, in substance, in 
similar form to the order of the High Court made in these proceedings for the 
interview of A notwithstanding the fact that Article 11(2) of the Regulation did not 
apply. The report of Dr. Byrne-Lynch, who interviewed the boys in those 
proceedings, much of which is set out at para. 14 of the judgment of Denham C.J., is, 
however, in terms of detail very different to the report in these proceedings. 
48. Denham C.J. in her judgment drew upon and cited with approval a number of 
passages from the speech of Baroness Hale in Re M (Abduction: Rights of Custody) 
[2007] UKHL 55, [2008] 1 A.C. 1288. In considering these, it is important to note 
that Baroness Hale was primarily addressing a submission made that in Convention 
cases where, on the facts, Article 13 applies, that "the policy of the Convention 
requires that the discretion be exercised in favour of return in all save the most 
exceptional cases". She rejected that contention at para. 40, where she stated:-
"40. On the other hand, I have no doubt at all that it is wrong to import any 
test of exceptionality into the exercise of discretion under The Hague 
Convention. The circumstances in which return may be refused are 
themselves exceptions to the general rule. That in itself is sufficient 
exceptionality. It is neither necessary nor desirable to import an 
additional gloss into the Convention." 
49. Baroness Hale later identified the correct approach to the exercise of discretion 
in Convention cases from para. 42, where she stated:-
22 
"42. In Convention cases, however, there are general policy considerations 
which may be weighed against the interests of the child in the individual 
case. These policy considerations include, not only the swift return of 
abducted children, but also comity between the contracting states and 
respect for one another's judicial processes. Furthermore, the Convention 
is there, not only to secure the prompt return of abducted children, but 
also to deter abduction in the first place. The message should go out to 
potential abductors that there are no safe havens among the contracting 
states. 
43. My Lords, in cases where a discretion arises from the terms of the 
Convention itself, it seems to me that the discretion is at large. The court 
is entitled to take into account the various aspects of the Convention 
policy, alongside the circumstances which gave the court a discretion in 
the first place and the wider considerations of the child's rights and 
welfare. I would, therefore, respectfully agree with Thorpe LJ in the 
passage quoted in para 32 above, save for the word "overriding" if it 
suggests that the Convention objectives should always be given more 
weight than the other considerations. Sometimes they should and 
sometimes they should not. 
44. That, it seems to me, is the furthest one should go in seeking to put a 
gloss on the simple terms of the Convention. As is clear from the earlier 
discussion, the Convention was the product of prolonged discussions in 
which some careful balances were struck and fine distinctions drawn. 
The underlying purpose is to protect the interests of children by securing 
the swift return of those who have been wrongfully removed or retained. 
The Convention itself has defined when a child must be returned and 
when she need not be. Thereafter the weight to be given to Convention 
considerations and to the interests of the child will vary enormously. The 
extent to which it will be appropriate to investigate those welfare 
considerations will also vary. But the further away one gets from the 
speedy return envisaged by the Convention, the less weighty those 
general Convention considerations must be." 
23 
50. She then turned specifically to child's objections at para. 46 and conducted an 
analysis with which Denham C.J. expressly agreed at para. 28 of her judgment in A. U 
v. TN U At paras. 27 and 28, Denham C.J. stated:-
"27. A Court in deciding whether a child objects to his return should have 
regard to the totality of the evidence. 
28. The range of considerations may be wide. As was stated in In re M 
(Abduction: Rights of custody) [2007] UKHL 55, [2008] 1 A.C. 1288 at 
p. 1308: 
' [ 46] In child objection cases, the range of considerations may be even 
wider than those in the other exceptions. The exception itself is brought 
into play when only two conditions are met: First, that the child herself 
objects to being returned and second, that she has attained an age and a 
degree of maturity at which it is appropriate to take account of her 
views. These days, especially in light of Article 12 of the United Nations 
Convention on the Rights of the Child, Courts increasingly consider it 
appropriate to take account of a child's views. Taking account does not 
mean that these views are always determinative or even presumptively 
so. Once the discretion comes into play, the Court may have to consider 
the nature and strength of the child's objections, the extent to which they 
are: "authentically her own" or the product of the influence of the 
abducting parent, the extent to which they coincide or are at odds with 
other considerations which are relevant to her welfare, as well as the 
general Convention considerations referred to earlier. The older the 
child, the greater the weight that her objections are likely to carry. But 
that is far from saying that the child's objections should only prevail in 
the most exceptional circumstances.' 
I agree with this analysis." 
51. Later in her judgment, when applying the principles to the facts in A. U v. 
TN U, Denham C.J., again drawing on Re M. (Abduction: Rights of Custody), refers 
24 
at para. 37 to another consideration relevant in this appeal, namely the change in 
balance between the policy of summary return and the operation of the exception 
based upon child's objections that may occur over time. There, she stated:-
"3 7. The balance between the policy of summary return and the operation of 
the exception may alter with time. In this case the children have been in 
Ireland for a considerable time. I would endorse the acknowledgment of 
Baroness Hale in In re M (Abduction: Rights of Custody) [2007] UKHL 
55, [2008] 1 A.C. 1288, where she states at p. 1307:-
' [ 44] ... But the further away one gets from the speedy return 
envisaged by the Convention, the less weighty those general 
Convention considerations must be.' 
A court should at all times seek to expedite cases arising under The 
Hague Convention, but circumstances such as have arisen in this case 
are the exception." 
52. In applying those principles to the facts of A. U v. T.N U, Denham C.J. 
concluded that the High Court judge, in exercising his discretion in that case, took 
into account all of the relevant factors identified by her, "including the fundamental 
policy objectives of the Convention" . Accordingly, she was satisfied that there were 
no grounds to interfere with the exercise of discretion by the trial judge, which she 
also determined in the circumstances was clearly correct. 
53. I would also refer to earlier comments of Denham C.J. at para. 32 of the 
judgment in A. U v. T.N U, and cited by Whelan Jin this case:-
"32. The learned trial judge was entitled to have regard to the children's 
stability and contentment in determining what policy of the Convention 
should prevail. The policy of the Convention should be viewed in the 
context of the totality of the evidence and in the best interests of the 
25 
children. This policy includes the general principle that the issue of the 
custody of the children be determined by the country of their habitual 
residence. However, also included in the Convention's policy is Article 
13 wherein it states that the judicial authority may refuse to return a 
child if it finds that the child objects to being returned and has reached 
an age and degree of maturity at which it is appropriate to take account 
of its views." 
54. The importance of this paragraph lies with the requirement that the policy of 
the Convention be viewed in the context of the totality of the evidence and in the best 
interests of the children and the inclusion of Article 13 as part of the policy of the 
Convention. It must be acknowledged that in many cases, that may be easier said 
than done. Whilst Denham C.J. in her judgment in A. U v. TN U does not make 
express reference to the judgment of the European Court of Human Rights in 
Neulinger and Shuruk v. Switzerland (App. No. 41615/07) (2012) 54 E.H.R.R. 31, 
nevertheless the above paragraph indicates to me that the Court was aware of the 
judgment in Neulinger which had been delivered on 6 July 2010 and had received 
much comment. The approach of the ECtHR to the consideration of child's best 
interests in applications for return under the Convention was somewhat modified in X 
v Latvia (App No. 27853/09) (2014) 59 E.H.R.R. 3. It is not necessary to consider 
these in any detail in this judgment. 
55. It is easier to say what a consideration of a child's best interest does not entail 
in the course of the exercise of discretion under Article 13, than what it does require. 
Notwithstanding references in the above extracts from Denham C.J. and Baroness 
Hale to the welfare of a child, a consideration of the child's best interests under 
Article 13 does not require a full welfare assessment. Article 19 of the Convention 
expressly provides that a decision on a return application is not a determination on the 
26 
merits of any custody dispute. Those are matters for the courts of habitual residence. 
What it does require has been stated in several different ways. Denham C.J. 
considered a court may have regard to the "stability and contentment" of the child. 
56. I would draw attention to the small but important possible difference between 
the approaches of Denham C.J. and Baroness Hale in certain of the above passages 
which may have lead the Court of Appeal into error. As appears, Baroness Hale at 
para. 43 speaks of the court being "entitled to take into account the various aspects of 
the Convention policy". Denham C.J., however, at para. 32 states that the "policy of 
the Convention should be viewed in the context of the totality of the evidence and in 
the best interests of the children" (emphasis added). Also later at para. 37, she refers 
to "the balance between the policy of summary return and the operation of the 
exception" (i.e. those exceptions laid out in Article 13 of the Convention) which may 
alter with time. Denham C.J. makes clear that a court exercising a discretion under 
Article 13 is not merely entitled to have regard to the policies of the Convention 
which favour return but is bound to do so. I respectfully agree that it is an obligation. 
The words used by Baroness Hale cited above may not be intended to imply that the 
Court is entitled not to have regard to Convention policies. What she later stated in 
paras. 44 and 46 of Re M (Abduction: Rights of Custody) indicate to me that they are 
always matters to be taken into account, but that the weight to be given to them will 
vary. 
57. Articles 11(6)-11(8) of the Regulation may also be relevant in an application 
such as this from an EU Member State, in considering an exercise of discretion under 
Article 13 of the Convention where a child's objections are made out. The Regulation 
did not apply in A. U v. T.N U, as the return was sought to the State of New York. 
27 
Those provisions require the Irish courts, where it refuses to make a return order 
pursuant to Article 13 of the Convention , to notify the courts of the Member State of 
habitual residence. They further make clear that the courts of habitual residence 
retain jurisdiction to decide upon custody, notwithstanding the refusal to return, and 
they expressly permit those courts to make an order which includes an order for the 
return of the child, which is enforceable in accordance with Section 4 of Chapter III of 
the Regulation and which excludes any contest on the substance of the order for 
return. Those provisions emphasise and give practical effect to the policy of the 
Convention that the courts of habitual residence are best placed to determine custody 
disputes. 
Summary of Principles 
58. Drawing on the above authorities, and others, at the risk of oversimplification, 
I would summarise the principles according to which an application for the return of 
children wrongfully removed should be determined in this jurisdiction. The 
underlying policies of the Convention are that it is, in general, in the best interests of 
children that custody disputes be decided by the courts of their habitual residence and 
that the abduction of children across borders is harmful to them and should be 
deterred. Those underlying policies are given effect to by both the general policy and 
objects of the Convention to secure the prompt return of children wrongfully removed 
and respect for judicial decisions in relation to custody and access within the 
Contracting States. Those objects in turn are given effect to by the general rule 
pursuant to Article 12 of the Convention, in respect of the mandatory return of a child 
wrongfully removed. However, included in the policy of the Convention is that there 
are a limited number of circumstances in which a requested court is permitted not to 
28 
return a child wrongfully removed. Those limited circumstances are set out in 
Articles 13 and 20 of the Convention. Article 20 is not relevant to this appeal. 
59. One of the circumstances identified in Article 13 of the Convention is where a 
court "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". A child's 
objections are separate and distinct from the circumstances identified in paras. (a) and 
(b) of Article 13, the latter of which relates to grave risk and intolerable situation. 
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 subject to age and maturity. 
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 
29 
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. 
62. Where a court is satisfied of the first two questions, it should then clearly turn 
to a consideration of the exercise of the discretion given to it by Article 13 of the 
Convention. That discretion must be exercised with due regard for the general 
policies and objectives of the Convention. As stated, these include general policies 
which favour the prompt return of children for the purpose of the courts of their 
habitual residence deciding custody disputes, but also include a policy that where a 
child objects, a court may refuse to return the child. 
63. There are no presumptions pertaining to the exercise of discretion under 
Article 13 of the Convention where a child's objections are made out and he or she is 
of an age and degree of maturity where it is appropriate to take account of the views. 
The child's views or objections are not determinative or even presumptively so. The 
court must exercise its discretion on all the evidence before it, having regard to the 
particular facts and circumstances of the application and the child in question. The 
discretion must be exercised in the best interests of the child in the context of the 
application. The court is not permitted to conduct a full welfare assessment for the 
purposes of deciding whether an order for return or an order to refuse return is in the 
best interests of the child. That is made clear by Articles 16 and 19 of the 
30 
Convention. It is a more limited appraisal of the actual circumstances of the child at 
the date the court is asked to exercise its discretion, based on all the evidence. 
64. The Court should carefully consider the nature of the objections and the 
reasons there for, and of course, the age and degree of maturity of the child, when 
deciding upon the weight to be attached thereto. In general, greater weight may be 
given to the views of an older child. However, it must be emphasised that care must 
be taken with such general statements. as each individual application must be assessed 
having regard to the individual facts and circumstances of the child, the parents and 
other family circumstances. 
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. 
31 
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 of continuing custody disputes. 
Issues on Appeal 
67. I now turn to the application of the above principles to the issues which 
require decision on this appeal. As set out above at paras. 32 and 34, the three issues 
upon which leave was granted were developed and focused in the course of written 
and oral submissions. The first issue relating to the nature of the appeal ultimately 
turned on the question as to whether or not the Court of Appeal was correct in 
determining that the High Court erred in its approach to the consideration of A' s 
objections to a return to Poland under Article 13 of the Convention. 
Error of High Court in approach to Child's Objections? 
68. I wish to repeat what I said at the outset, that the High Court was faced with a 
very difficult situation on this application, where the mother did not have legal 
representation. That fact was of particular significance in relation to the consideration 
of the report by Dr. Nolan on her interview with A. That interview was conducted 
pursuant to the High Court order made on 1November2017. At that time, the mother 
had filed one affidavit in response to the application. She had not given any evidence 
that A objected to a return to Poland. This application was one in which the issue of 
child's objections was not raised as a defence by the mother. It arose in the 
proceedings by reason of the contents of the report of Dr. Nolan. 
69. The High Court was correct in determining, in accordance with the second 
indent of Article 13 of the Convention (and Article 11 of the Regulation), that it 
32 
should consider and reach a decision in relation to A's objections as reported by Dr. 
Nolan. As already pointed out, the relevant part of Article 13 is not dependent upon a 
respondent adducing evidence in support of a particular defence. Article 11 (2) of the 
Regulation required the Court to give A, then aged 7 years and 7 months, an 
opportunity of expressing his views to the Court. It follows that those views must be 
considered, and once the Court was satisfied that A had reached an age and degree of 
maturity where it was appropriate to take the views into account, then obviously the 
Court had to consider whether or not, on the evidence adduced, it was satisfied that A 
objected to a return to Poland and if so the further questions identified above. 
70. A full reading of the High Court judgment indicates that the judge did find (on 
the limited evidence available to him) that A objected to being returned to Poland and 
that he was of an age and degree of maturity that it was appropriate to take into 
account those views. However, he did not make, as is certainly desirable and 
probably required, an express finding in accordan ce with the three stage approach set 
out above that the court was satisfied of the first two factual questions, such that it had 
a discretion under Article 13 of the Convention not to return the child, which he was 
required to exercise in accordance with the principles set out above. 
71. Notwithstanding that he made those findings, he did not expressly consider, as 
was necessary given the nature of the objections, whether the objection voiced by A 
should properly be considered as an objection to returning to Poland and not just an 
objection to living with his father rather than his mother. This issue is considered in 
more detail below in relation to the judgment of the Court of Appeal. 
72. However, having found that A did object to a return to Poland and that he was 
of an age and maturity where it was appropriate to take account of his views, the High 
33 
Court unfortunately did not consider those objections in accordance with the second 
indent of Article 13 of the Convention separately and distinctly from the defence of 
grave risk which had been raised by the mother. The Court of Appeal was, in my 
view, correct in concluding from the judgment delivered by the High Court judge, and 
in particular paras. 58-64, that he did not do so. Where a trial judge finds that 
objections to return are made out and that the child is of an age and maturity to take 
account of his views, then he should make clear that he is turning to the third stage in 
order to consider how the discretion given by Article 13 should be exercised. As held 
by the Court of Appeal. it is well-established that the defence that a child objects to 
return under Article 13 is entirely separate from the defence of grave risk. 
Court of Appeal decision not to remit 
73. The second issue in dispute on the appeal to this Court was the decision of the 
Court of Appeal not to remit the matter to the High Court, but rather determine the 
issues in dispute before it on the evidence before the High Court, all of which was 
either on affidavit or in the form of the report furnished to the Court by Dr. Nolan. 
There was no oral evidence. 
74. It is not in dispute that the Court of Appeal, once it held that the trial judge had 
been in error in his approach to the consideration of A's objections to a return to 
Poland, had the jurisdictional option, identified by Whelan J. at para. 75 of her 
judgment, of either remitting the matter to the High Court or considering the issue of 
A's objections in accordance with law on the evidence before the High Court. What 
is disputed is that it was permissible for the Court of Appeal to exercise its discretion 
in favour of the latter approach, by reason of the limited evidence available to the 
Court in relation to A's objections. 
34 
75. Which approach should be taken by an appellate court on a return application 
under the Convention will depend upon the particular facts and circumstances of each 
appeal. Both parties correctly agree that the Court of Appeal did have jurisdiction to 
remit. However, an appellate court does also have jurisdiction to exercise its own 
discretion where Article 13 applies: see, inter alia, P. v. B. (No. 2) (Child Abduction: 
Delay) (1999] 4 I.R. 185, Minister for Justice (E.M) v. JM [2003] 3 I.R. 178 and Re 
M (Abduction: Rights of Custody), as referred to above. 
76. On the facts of this case, regrettably, the report of the interview by Dr. Nolan 
with A was extremely limited. Limited evidence in relation to the objections makes a 
consideration of child's objections; including the making of findings of fact and the 
exercise of discretion pursuant to Article 13 of the Convention difficult. There are 
strong arguments in favour of remittal where the evidence is so limited. The purpose 
of such a remittal will be to enable a court to obtain further evidence. This was a case 
where, if the mother had been represented in the High Court, there likely would have 
been an application on her behalfthat Dr. Nolan be called to give oral evidence or for 
a further interview with the child. Even without such an application, it appears to me 
that the High Court judge should have considered whether Dr. Nolan might be 
required to come and give oral evidence or possibly have given directions for a 
second interview, with additional specific matters to be addressed. However, the 
parties would have to have been be permitted to make submissions on such steps, 
which is also complicated where one party is and one party is not represented. I also 
note the father had objected to the first interview. The High Court judge was 
significantly hampered by the absence of legal representation for the mother and the 
inequality of the fact that the father had legal representation. 
35 
77. However , by the time the Court of Appeal had to take its decision in June 
2018, this had not happened. The Court of Appeal had a difficult decision to make. It 
was undoubtedly faced with only limited evidence in relation to the child's objections, 
a fact which favoured remittal. The mother still did not have legal representation . 
However, on the particular facts of the appeal then before it, there were also strong 
countervailing considerations; approximately 17 months had elapsed since the 
children had been wrongfully removed to Ireland in January 2017, and this period had 
to be considered in light of the highly unusual factual context that existed, in which 
both children had lived in Ireland since birth and had only spent 14 months of their (5 
and 8 year old) lives in Poland. 
78. I have concluded that the Court of Appeal, on the particular facts of this 
appeal, was not in error in in exercising its discretion to decide the issues raised by 
A's stated objections on the evidence before the High Court and not to remit the 
matter to the High Court. The only purpose of a remittal to the High Court could have 
been for the purpose of obtaining additional evidence in relation to A's objections 
which would have meant further delay and may have necessitated a further interview 
of A, which is unlikely to have been of use or been in his best interests in June 2018. 
Seventeen months in the lives of an eight year old and a five year old is a very 
significant period of time, particularly when viewed in the context of the highly 
unusual fact that they had spent their entire life in Ireland prior to November 2015 and 
then spent a relatively short period in Poland, albeit sufficient to acquire a habitual 
residence there. It was, and is, in the interests of the children that these summary 
proceedings be brought to conclusion as soon as feasible and that any continuing 
dispute between the parents be decided in custody proceedings in Poland upon the 
basis of a full welfare assessment. In the context of this case, further evidence in 
36 
relation to the child's objections was unlikely to be of such assistance as to justify the 
continued delay and uncertainty that a remittal would have entailed. 
79. Such an approach is consistent with the objects of the Convention for prompt 
return and expedition in the determination of proceedings. Once the decision was 
taken that, notwithstanding the limited nature of the report of Dr. Nolan, there should 
not be a remittal for the purpose of obtaining further evidence, the Court of Appeal 
was as well placed as the High Court to decide all relevant issues. 
Consideration of Article 13 by Court of Appeal 
80. The judgment of the Court of Appeal in relation to Article 13 of the 
Convention and child's objections must be considered in the context of the grounds of 
appeal which were advanced on behalf of the mother before that court, her absence of 
legal representation and the issues in dispute. The principal legal ground of appeal 
appears to have been the error of the High Court judge in considering the child's 
objections only in relation to the defence of grave risk and not on a standalone basis. 
The decision of the Court of Appeal on this issue has now been upheld. However, it 
also appears to have been still in dispute before the Court of Appeal as to whether, on 
the evidence of the report of Dr. Nolan, the court should find that A objected to a 
return to Poland and was of an age and degree of maturity where it was appropriate 
for the Court to take into account his views. 
81. Whelan J. considered the general principles regarding the defence of child's 
objections under Article 13 of the Convention, commencing at para. 25 of her 
judgment. She initially correctly referred to the objection of a child being a separate 
and distinct ground of defence under Article 13 and identified the factual questions 
which are the first two stages in accordance with the principles set out above, namely 
37 
whether the child objects to being returned to the requesting state and the degree of 
maturity of the child. She also clearly and appropriately identified a distinction 
between an objection made by a child to return and a preference against returning. 
82. Before this Court, neither the approach nor the findings of fact made by the 
Court of Appeal in relation to the first two stages, that A objected to a return to 
Poland and was of an age and degree of maturity at which it is appropriate to take 
account of his views, are in issue. I have noted the careful analysis undertaken by 
Whelan J. of those issues, which correctly has not been challenged. The focus of the 
remaining grounds of appeal pursued before this Court was on alleged errors by the 
Court of Appeal in the exercise of the discretion of the Irish courts pursuant to Article 
13 of the Convention, given the findings of fact made in relation to A's objection to a 
return to Poland. 
83. The submissions made on behalf of the father against the discretion exercised 
by the Court of Appeal were, in summary:-
(i) The Court failed to have proper regard for the general policy of the 
Convention in favour of return in the exercise of its discretion and gave 
undue weight to A's objection to return. 
(ii) The Court erred in deciding that the fact that the mother placed A in the 
care of his father in November 2015 was not relevant to the weight to be 
attached to A's objections or material to the exercise of discretion. 
(iii) The Court failed to assess the objections of A as reported by Dr. Nolan 
in the context of the evidence referred to by the Polish Court in its 
reasoning for a decision to dismiss the mother's application under the 
38 
Hague Convention (exhibited in translation at Exhibit G to the affidavit 
of the father filed on 6 December 2017). 
84. In the course of her judgment, Whelan J. refers to the judgments of Denham 
C.J. in A. U v. T.N U and that of Baroness Hale in Re M (Abduction: Rights of 
Custody). She cites a number of passages from those judgments including para. 32 
from the judgment of Denham C.J., cited above. Those judgments and certain of the 
passages cited refer to the general policies of the Convention, including those which 
favour the return of children. However, I have concluded from a careful reading of 
the full judgment that it does not disclose that the Court of Appeal took into account 
and had due regard for the general policies of the Convention which favour return and 
in particular, the underlying policy that in general, a child's best interests is served by 
a prompt and summary return such that the courts of habitual residence may decide 
upon such custody disputes. 
85. The judgment sets out what is considered by the Court of Appeal to be the 
correct approach to the exercise of discretion under Article 13 of the Convention 
(where child's objections are made out:-
"66. (a) A child's objections are not outcome determinative in and of 
themselves. 
(b) The discretion is at large and there is no requirement of 
exceptionality or proof that there is a basis for the objection 
amounting to a grave risk. 
( c) The court is entitled to take into account the various aspects of 
Hague Convention policy, the circumstances which gave the court 
discretion in the first place, and wider considerations of the child's 
rights and welfare." 
39 
86. I recognise that this may not have been intended as an exhaustive statement of 
the relevant principles and may also be intended to address the grounds of appeal 
pursued before the Court of Appeal. Nevertheless, as formulated , it is indicative of 
the approach taken by the Court of Appeal. Of particular concern is the statement that 
"the Court is entitled to take into account the various aspect of The Hague 
Convention policy ... " (emphasis added). I recognise that this phrase was used by 
Baroness Hale at para. 43 of her speech in Re M (Abduction: Rights of Custody), but 
nevertheless, and with respect, as already stated, it is not a correct statement of the 
law and is not in accordance with the judgment of Denham C.J. in A. U v. TN U. A 
court is obliged,_when exercising a discretion under Article 13, to have regard to the 
policies of the Convention, including those which favour the prompt and summary 
return of children to the courts of their habitual residence and the policy indicated by 
Article 13 itself, which permits a refusal to return in accordance with the principles 
already set out. 
87. Similarly, it does not appear to me to be a correct explanation of the required 
approach to state that "the discretion is at large" without further explanation. Again, I 
recognise that such phrase was used in the same para. 43 of the speech of Baroness 
Hale in Re M (Abduction: Rights of Custody). but used alone, as here, may give a 
misleading impression. The discretion of the Court under Article 13 of the 
Convention may be "at large" in the sense that there are no presumptions as to how 
the discretion should be exercised, but there are very clear requirements as to the 
matters to which a court must have regard in exercising its discretion pursuant to 
Article 13, in accordance with the principles set out earlier in this judgment. 
40 
88. I cannot be satisfied that the Court of Appeal has demonstrated by its 
judgment that it did have due regard to those policies of the Convention which favour 
the return of a child when reaching its decision that it should, on the particular facts of 
this appeal, refuse to return the children to Poland. The judgment does not disclose 
any consideration given to the balance to be struck between those policies which 
favour return and the best interests of A, having regard to the objections expressed by 
him, his age and all the other relevant evidence before the court. 
89. I am also not satisfied that the consideration given by the Court of Appeal to 
A's objections to return and the weight to be attached thereto was in accordance with 
law. This was primarily set out at para. 91 of the judgment:-
"91. The intensity of the child [A's] objections about a return to Poland and 
into the sole care of his father and the reasons given for those objections 
were significant factors in the discretionary equation having due regard 
to Article 13 of The Hague Convention. Further, when considered in the 
light of Article 12 of the UN Convention on the Rights of the Child 
together with the Brussels II bis Regulation, they were of such a nature 
that in this case they weighed very heavily against a return." 
90. In accordance with the principles already set out, a court must carefully 
consider the nature of the objections, the reasons therefor and the age and maturity of 
the child when deciding upon the weight to be attached thereto. Unfortunately, the 
Court of Appeal had very limited evidence being only what is stated in the report of 
Dr. Nolan. I find it difficult to understand how the "intensity" of the child's 
objections could be gauged from what is stated in the report. However, more 
importantly, in assessing the weight to be attached to A's objections, no account was 
taken of the age of A. As has been stated, in general greater weight would be given to 
the views of an older child and it follows, less weight to the views of a younger child. 
41 
I wish to emphasise that this is a general statement and there may of course be 
circumstances in which having regard to all the evidence, great weight may be given 
to the objections of a younger child. A. U v. TN U was one such case. It was 
however, a case where there was significantly greater evidence in relation to the 
objections expressed than in the present case. For the reasons more fully set out later, 
the age of A and the evidence in relation to his objections is such that I have 
concluded that the Court of Appeal was in error in determining that the objections of 
A were such that they "weighed heavily against a return". 
91. The ground of appeal in relation to the failure to consider the mother's 
placing of the children in the care of the father in November 2015 to go to Poland as 
material must be considered in the context of exactly what the Court of Appeal said in 
relation to this issue. Whelan J., in her judgment, was considering a ground of appeal 
that contended the High Court judge had incorrectly considered that fact as relevant. 
The High Court judge, at para. 63 of his judgment, did so in a limited way whilst 
considering the child's views and objection as expressed, but in the context of 
assessing whether the mother had made out a case that the children were at grave risk 
or would otherwise be placed in an intolerable situation if returned to Poland. 
92. In the Court of Appeal, Whelan J. at para. 35 stated:-
"35. The relationship of the child with the father prior to November 2015, 
when the parents and children resided together in Ireland, is not material 
to the exercise required on the part of a trial judge under Article 13 
regarding assessment of a child's objections. The trial judge erred in 
considering that the decision of the mother to place the child in the care 
of the father in November 2015 or the father's relationship with [A] in 
Ireland prior to that date could be relevant in regard to the weight to be 
42 
attached to the objections of [A] or otherwise material to his exercise of 
discretion." 
93. She returned to this issue at para. 72, where she stated:-
"72. The conduct of the mother in allowing the children to travel to Poland in 
the sole care of the father could not be probative of his subsequent 
conduct, particularly towards [A]. The children had never been in the 
sole care of their father up until their departure from Ireland in 
November 2015." 
94. The Court of Appeal may be correct in stating that the permission given by the 
mother for the children to travel to Poland with the father "could not be probative of 
his subsequent conduct". It is true that what is alleged to have occurred took place 
after the mother gave her consent to travel. Nevertheless, as is clear from the 
principles set out above, the assessment of the child's objections, the weight to be 
attached thereto and the exercise by the Court ultimately of its discretion must be 
considered on all the evidence before the Court. The fact that the mother, who had 
lived with the father in Ireland with the children since their births, was willing to 
consent to the father taking the children to live with him alone (possibly with family 
support) in Poland was evidence relevant to the exercise of the discretion under 
Article 13 of the Convention which ought not to have been excluded. It demonstrated 
trust by the mother in the father at that time. Such trust in November 2015 does not, 
of course, exclude a possibility that it was misplaced, but that is not for the Irish 
courts to decide. 
95. Similarly, the reasoned judgment of the Polish court, which is exhibited in 
translation at Exhibit G to the father's affidavit, is relevant evidence which ought to 
have been taken into account. It may, however, be oflimited assistance since it 
43 
appears at p. 9 of the translated document that it dismissed the father's "request to 
introduce evidence of an expert psychologist's opinion concerning the preferences of 
the children, as it did not have any influence on the settling of the case". However, 
the judgment also referred to the Court having heard A, but all it stated in relation to 
that was that "[ d]uring the hearing of the minor [A], he talked about his relationsh ip 
with both of his parents". Nevertheless , thatjudgment should not have been excluded 
from consideration, when assessing the objections made, or the weight to be attached 
to same and the exercise of the court's discretion. In circumstances where the expert 
evidence in relation to the child's objections was very limited indeed, and the issue to 
be considered was the exercise of the court's discretion in the interests of the child, it 
was incumbent on the court to have regard to any evidence that was available to it. 
96. Accordingly , I have concluded that the Court of Appeal erred in its approach 
to the exercise of its discretion pursuant to Article 13 of the Convention in relation to 
A' s objections to a return to Poland, such that its judgment cannot be upheld and the 
appeal is allowed in part. 
Decision by this Court 
97. This Court is now faced with exactly the same dilemma as the Court of Appeal 
was in June 2018. It is now February 2019, and over two years have passed since the 
children were wrongfully removed to Ireland; it has been approximately 18 months 
since these proceedings were issued and over 16 months since A was interviewed by 
Dr. Nolan on 7 November 2017 and expressed both his objection to returning to 
Poland and his preference to continue living in Ireland. Those time periods in this 
application must be viewed in the highly unusual additional factual circumstances that 
these two children lived in Ireland since their births in 2010 and 2013, until their 
44 
departure to Poland in November 2015, such that the great majority of their lives have 
been spent in Ireland. 
98. As I have repeatedly stated in thisjudgment, the evidence relevant to A's 
objections is extremely limited and sparse. I have little doubt that if the mother had 
been legally represented in the High Court, her counsel, upon receipt of Dr. Nolan's 
report, would immediately have sought either the attendance of Dr. Nolan to give oral 
evidence or a further interview with A, in order that the Court would have a better and 
fuller understanding of the objections being made by A to a return to Poland. It might 
also have been relevant at that time to explore the probable factual situation for A and 
his sister on a return to Poland. It is also relevant to this Court's exercise of discretion 
on this issue that the factual findings made, that A objects to returning to Poland and 
is of an age and degree of maturity where it is appropriate to take account of his 
views, are now final. The issues relating to those findings were carefully assessed and 
determined by the Court of Appeal and there is no appeal being pursued before this 
Court in relation to its decision on those factual findings. Hence, in accordance with 
Article 34.4.3° of the Constitution, they are final and conclusive. 
99. It is not in dispute that this Court has jurisdiction either to remit or to make a 
decision as to how to exercise the discretion which the Irish courts have, pursuant to 
Article 13 of the Convention, by reason of the final and conclusive factual findings. I 
have concluded that these proceedings in Ireland must now be brought to an end. 
Whilst it is not desirable that a court is required to exercise its Article 13 discretion on 
such limited evidence, nevertheless, the time has come when these proceedings must 
be finalised and the courts of habitual residence decide on any continuing dispute 
between the parents in relation to the custody of these children, including the long 
45 
term living arrangements for the children. As previously set out, regardless of the 
decision of this Court on the return of the children, the courts of Poland retain 
jurisdiction under the Regulation to determine custody disputes. If the decision made 
is against return, then the Polish courts do so pursuant to Articles 11 ( 6) -(8) of the 
Regulation. If the children are returned to Poland, then they do so pursuant to 
Articles 8 and 10 of the Regulation. Accordingly, I have concluded that this Court 
should now exercise the Article 13 discretion which the Irish courts have by reason of 
the findings made in relation to A's objections to a return to Poland. 
100. A at the time of the interview by Dr. Nolan was seven years and seven months 
old. He was a young child. His objection to returning to Poland was made in a 
context where he knew that his mother lived in Ireland and his father lived or would 
be living in Poland ifhe returned. The objection to return to Poland as reported was 
because "he alleges his father beats, screams at him and grabbed him". Those 
allegations were, however, made in a context where shortly before making them, he 
had expressed a wish in the interview to live in Ireland with his mother, sister and 
uncle [his mother's partner]. The allegations made against the father have not been 
examined and should not be examined by the Irish courts. This is one of the 
significant difficulties for a court assessing and weighing child's objections. I am 
simply considering the nature of the objections, the reasons given by A for his 
objection to return and the context in which they were expressed, to consider the 
weight which should be attached to the objections. The other matters from the 
interview relevant to the weight to be given to A's objections include Dr. Nolan's 
professional view that A was capable of forming his own views, had a level of 
maturity of a typical seven-year-old child and did not "indicate or allude to any 
influence from his mother or sibling ... ". Dr. Nolan's view was that his objections to 
46 
being returned to Poland "as clearly articulated by him are/were based on his 
experience of being a child and in the care of his father in Poland". Finally, she 
expressed the view that "[A]'s wish is unambiguous, it is to live in Ireland with his 
mother, sister and [T]"and that the objection to returning to Poland was "based on his 
experience and recall of life in Poland with his father". 
101. As already stated, in assessing the weight to be given to A's objections , it is 
appropriate to consider them in the factual context that the mother, who had lived 
with the father and the children, in A's case for approximately five and a half years, 
was willing to send her two children in the care of the father alone to Poland in 
November 2015. The other relevant evidence was that A had been interviewed by the 
Polish court, which simply recorded that he had spoken of his relationship with both 
parents. There is, however, no indication as to what he said about such relationship. 
102. My conclusion from the report of Dr. Nolan is that A did have, in November 
2017, an unambiguously expressed wish to remain living in Ireland. This was a 
cogent and understandable preference expressed by him, given the lengths of time 
during his life that he had lived in Ireland and Poland respectively. He also 
unambiguously objected to being returned to Poland. Whether the objection 
expressed and allegations made were because he wanted to remain living in Ireland, 
or whether there is a basis for the allegations made against his father is not an issue 
capable of being assessed on the evidence before the Court. The mother did not, in 
her grounding affidavit, make any reference to an objection of A to returning to 
Poland. This is to her credit and supports the view expressed by Dr. Nolan that the 
objection expressed by A was his own view and not influenced by the mother. The 
other factor which must be taken into account is A's age. In relative terms he was, in 
47 
November 2017, a young child. It is well established that objections expressed by a 
younger child may carry less weight. My overall conclusion on all the evidence is 
that limited weight should be attached to the objections to return made by A in 
November , 2017. 
103. The policies of the Convention which favour return need not be repeated. 
They are policies which in general are in the best interests of children. A was 
wrongfully removed to Ireland in January 2017. The policy of the Convention is that 
it is in his best interests that he be promptly returned to Poland in summary 
proceedings, in order that the Polish courts who are best placed to determine custody 
disputes between his parents do so and that wrongful removal by one parent is 
deterred, as it is, in general, harmful. The policy is, however, to be achieved by a 
prompt return and it is recognised that the balance between the weight to be attached 
to the policies of the Convention which favour return and the best interests of the 
individual child may alter with the passage of time since the wrongful removal, as 
explained in A. U v. T.N U and Re M (Abduction: Rights of Custody), cited above. 
104. The Court must now exercise the discretion in the best interests of A. Those 
best interests must be ascertained in the context of the nature of these proceedings, the 
general policies of the Convention and the individual facts pertaining to A, including 
his expressed objections to return to Poland. For the reasons set out, I have indicated 
limited weight should be attached to the objections expressed. However, A's best 
interests must be considere d on all relevant facts, which include where he has lived 
since birth. A lived in Ireland for a period of approximately five and a half years prior 
to moving to Poland in November 2015; then lived in Poland for approximately 
fourteen months and since January 2017, has lived in Ireland for a further two years. 
48 
As a matter of common sense, he must be considered to now have a stable life in 
Ireland. Those facts are such that I have concluded that, taking into account the 
Convention policies which favour return, and A's objections and the limited weight to 
be attached to same, it nevertheless cannot be considered to be in the best interests of 
A that he now be required to return to Poland by an order made in summary 
proceedings without a full welfare assessment involving due considera tion of what is 
in his best interests. In reaching that conclusion , I wish to emphasise the importance 
of the fact that A is a child who had lived in Ireland for approximately five and a half 
years before he moved to Poland and became habitually resident there, but he only 
spent approxima tely 14 months in Poland before returning to Ireland just over two 
years ago. I would also add that the additional time between the decision made by the 
Court of Appeal and this Court is not significant. This comment leads to an obvious 
inference that in my view, the decision reached by the Court of Appeal was the 
correct decision, but regrettably the approach of the Court to the exercise of discretion 
as set out in its judgment was not correct, for the reasons already given. 
105. I would also emphasise that this is a highly unusual case. Where a court 
concludes, as I have done, that limited weight should be attached to the objections of 
a child by reason of his age or the nature of the objections, it is the general policies of 
the Convention which favour return which would normally prevail. If not, there is a 
risk that those policies and the objects of the Convention will be undermined. 
However , the life of A in Ireland before he left for Poland in November 2015 and the 
relatively short time he lived in Poland has meant that his sense of stability and 
contentment in Ireland following his wrongful removal back to Ireland is of a 
different order to the norm, such that it is in his best interests that there should not be 
a further move until such time as there has been a full welfare assessment conducted 
49 
to determine where, or with which parent, if they continue to live apart, he should live 
in the future. 
106. The other relevant feature ofthis case is that it is an application to which the 
Regulation applies. As stated, the Polish courts retain jurisdiction to determine 
ongoing custody disputes between the parents, notwithstanding that no order for 
return of the children is being made. Both parents are Polish nationals with, it would 
appear, Polish legal representation. The mother, as the parent who wrongfully 
removed the children to Ireland, is not gaining an advantage in subsequent custody 
proceedings. It will be a matter for her to fully participate with the Polish proceedings 
and facilitate participation by the children therein. 
107. It follows from the decision to refuse to make an order for the return of A that 
there should also be an order to refuse the return of his sister M. This consequence is 
agreed. That order is made pursuant to Article 13 (b ), for the reasons set out in the 
judgment of the Court of Appeal. 
Conclusions 
108. The absence of legal representation for the mother in the High Court and Court 
of Appeal created particular difficulties for the appropriate hearing and determination 
of these proceedings in accordance with the expedition required by the Convention 
and the Regulation and with fair procedures. It also exacerbated the difficulties for 
the Court in considering the objections of A expressed in his interview with Dr. 
Nolan, pursuant to the order of the High Court made for the purposes of ensuring that 
A was given an opportunity to be heard in the proceedings, as is required by Article 
11 (2) of the Regulation. 
50 
109. The Court of Appeal was correct in concluding that the High Court judge did 
not consider A's objections in accordance with the second indent of Article 13 of the 
Convention separately and distinctly from the defence of grave risk and that, in failing 
to do so, he erred in his approach to Article 13 of the Convention. 
110. Having determined that the High Court judge was in error, the Court of 
Appeal had the option of either remitting the application for return to the High Court 
with or without directions or deciding to determine the application for return on the 
evidence before the High Court in accordance with law. 
111. On the particular facts of this appeal, where all the evidence was on affidavit 
or in written form (that is, the report of Dr. Nolan to the Court), the only practical 
purpose of a remittal to the High Court would have been to obtain further evidence in 
relation to A's objections. On the unusual facts of these proceedings, where the 
children had lived in Ireland since their births in 2010 and 2013, respectively, until 
their move to Poland in 2015, and in light of the period of time spent there and the 
time which had elapsed since the date of wrongful removal in January 2017, the Court 
of Appeal did not err in determining that it should not remit and should decide the 
application on the basis of the evidence before the High Court. 
112. The Court of Appeal correctly assessed and made findings of fact that A 
objected to a return to Poland and was of an age and degree of maturity at which it 
was appropriate to take into account his views. Those decisions of the Court of 
Appeal are not the subject of an appeal to this Court, and in accordance with Article 
34.4.3° of the Constitution, are final and conclusive. 
113. The Court of Appeal was however, in error in its approach to the exercise of 
discretion pursuant to Article 13 of the Convention. The judgment of the Court of 
51 
Appeal does not demonstrate that it had due regard to the general policies and objects 
of the Convention which favour return. The consideration given to A's objection to 
return and the weight to be attached thereto was not in accordance with law. It also, 
in error, failed to take into account as relevant to the exercise of its discretion, the 
evidence in relation to the mother permitting the father to take the children to Poland 
in November 2015 and the reasonedjudgment of the first instance court in Poland on 
the mother's application under the Convention. Accordingly, the judgment of the 
Court of Appeal in relation to the exercise of discretion pursuant to Article 13 of the 
Convention cannot be upheld and the appeal is allowed in part. 
114. This Court has the option ofremitting the proceedings or making a decision on 
the appropriate exercise of discretion pursuant to Article 13 of the Convention on the 
findings of fact made by the Court of Appeal in relation to the child's objections and 
his degree of maturity. For the reasons fully set out in the judgment, the Court has 
decided that it should not remit the proceedings and should exercise the Article 13 
discretion on the evidence before the High Court and Court of Appeal. 
115. A consideration of the nature and context of the objections expressed by A in 
his interview with Dr. Nolan in November 2017 and his then age has led the Court to 
a conclusion that limited weight should be attached to his objection to return to 
Poland. Such a conclusion would normally lead to a decision that the general policies 
of the Convention which favour return should prevail and notwithstanding the 
objections made, the order for return should be made. 
116. In accordance with the general principles set out in the judgment, the 
discretion of this Court pursuant to Article 13 of the Convention must be exercised on 
all the relevant evidence before the Court. That evidence includes the fact that A was 
52 
born in April 2010 in Ireland and lived here until his departure to Poland in mid-
N ovember 2015, where he spent 14 months and then returned to Ireland in early 
January 2017. The Court, taking into account the general policies of the Convention 
which favour return, the limited weight which it considers should be accorded to the 
objections expressed by A, and the unusual facts in relation to the periods of time 
lived in Ireland and Poland respectively, has concluded that it cannot be considered to 
be in the best interests of A to make an order for return in these summary 
proceedings. Any decision by a court that A is required to move from Ireland to 
Poland should only be taken following a full welfare assessment, as will happen in 
custody proceedings. This is required in his best interests. Hence, the decision of the 
Court pursuant to Article 13 of the Convention is to refuse an order for the return of A 
to Poland 
117. Article 11 of Regulation 2201/2003 applies to these proceedings. The Polish 
courts retain jurisdiction to determine any continuing custody disputes between the 
parents in relation to the children pursuant to Articles 11(6)-(8) of the Regulation. 
118. It is not in dispute that if the decision is to refuse an order for the return of A 
to Poland, it follows that there should also be an order refusing the return of his sister 
M, with whom he has lived for his entire life, for the reasons set out in the judgment 
of the Court of Appeal. 
119. The appeal should be allowed in part and so much of the order of the Court of 
Appeal as dismissed the proceedings be vacated. In lieu thereof, there will be an 
order pursuant to Article 13 of the Convention that the application for the return of the 
children to the Republic of Poland be refused for the reasons set out in this judgment. 
53 
There will also be an order pursuant to Article 11 ( 6) of the Regulation for the 
transmission of the relevant papers to the courts in Poland and for the release of 
papers by the parties to their legal representatives in Poland and their use in any future 
court proceedings in Poland relating to the children, the subject matter of the 
proceedings. 
Additional Observations 
120. I wish to make three additional observations in relation to these proceedings. 
First, the limited nature of the report of the interview by Dr. Nolan 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 Dr. Nolan 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 
54 
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 with specific matters to be addressed should be ordered. 
121. The second general observation I wish to make relates to the failure of the 
mother to obtain legal representation in this jurisdiction at the commencement of 
these proceedings. Hague Convention proceedings are extremely legally complex. 
They are not proceedings which can normally be appropriately dealt with by a party 
without legal representation. The applicant always has legal representation provided 
by the Legal Aid Board. As set out in this judgment , both the administrative and 
judicial authorities are bound by the Convention, as implemented by the 1991 Act, to 
act expeditiously in relation to such proceedings. The judges must, of course, also act 
in accordance with the constitutional principles of fair procedures in these adversarial 
proceedings. The children are the subject of the proceedings and do not, normally, 
have separate representation, but the courts have obligations to ensure that they are 
heard and their rights are respected in the proceedings. The absence of legal 
representation for a respondent such as the mother in these proceedings undoubtedly 
both complicates and delays the proceedings and, as occurred here, may also result in 
one or more appeals. Article 7 of the Convention obliges the central authority in this 
jurisdiction, namely the Minister for Justice and Equality to take all appropriate 
measures , inter alia "where the circumstances so require, to provide or facilitate the 
provision of legal aid and advice, including the participation of legal counsel and 
advisers". That obligation is imposed for the purpose of securing "the prompt return 
of children and to achieve the other objects of this Convention". This may require 
legal representation for respondents to be facilitated. The issues to be decided in such 
55 
proceedings are usually of fundamental importance to the wellbeing of the children 
involved and their family life. 
122. The legislative provisions in relation to legal aid are of course, a matter for the 
Oireachtas and possibly the Executive. The Court would simply request that these 
might be reconsidered in relation to respondents and/or the position of children in 
return applications under the Convention, in the context of the difficulties identified 
by this appeal. In my experience, the difficulties presented in these proceedings by 
the absence of legal aid are not unique in return applications under the Convention. 
The overall cost may be reduced if an early resolution is achieved, which will 
normally be assisted by representation of both parties. 
123. Third, as appears from the judgment, notwithstanding that the order to refuse 
to return the children to Poland is upheld, it remains the position that the Polish courts 
retain jurisdiction to decide on any continuing custody disputes between the father 
and the mother in accordance with Articles 11(6) -(8) of the Regulation. The Court 
will now transmit to the court in Poland, before whom the custody proceedings 
remain pending, the relevant documents, including the transcripts of the hearings and 
the judgments of the courts in this jurisdiction. The importance to the children of 
maintaining a relationship with both parents cannot be over-emphasised. If the 
parents continue to live in two different countries, then very careful arrangements 
need to be put in place to achieve this. The mother will, I am sure, receive advice as 
to the importance of her participation in the Polish proceedings and the fact that any 
order made by the Polish courts may be enforceable in this jurisdiction without review 
of its substance. Whilst the affidavits disclose differences between the parents, I am 
sure that each parent seeks to promote what he or she considers to be in the best 
56 '. 
interests of their children. Undoubtedly, the best interests of their children will be 
served most appropriately if the parents can agree on future living arrangements for 
the children which would enable the children to spend time with each parent in their 
respective countries, secure in the knowledge that they will be entitled to return to the 
other parent at the end of an agreed holiday or school term. It is to be hoped that the 
parents, with the assistance of lawyers either in this jurisdiction or in Poland, might be 
able to achieve such an agreement in the interests of their children. 
No Redaction Needed