Article 13 of the Hague Convention

New Appeal: Interpreting Article 13 of the Hague Convention

CARI Child Abduction Recovery International knows intimate details of the below case, and have been given permission to post this blog by the mother involved. The Irish courts are using this specific case as a benchmark.

In this determination, S v R, the Supreme Court granted S leave to appeal the Court of Appeal’s decision, overturning the High Court’s order that his children be returned to him in Poland. The court granted leave on three questions relating to the interpretation of Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction as applied by Council Regulation (EC) 2201/2003, 27th September 2003:

(i) Whether the Court of Appeal was correct to approach the case de novo 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.

Article 13:

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.

Background

S and R are Polish nationals. They met in Ireland. They had two children, born in 2010 and 2013. In 2015 they separated. S returned to Poland with the two children, with R’s consent. In 2016 R went to Poland and sought the return of the children to her in Ireland, under the Hague Convention. The Polish courts dismissed those proceedings. Despite that, in January 2017, R brought the children to Ireland without S’s knowledge or consent. It is not in dispute that the children were in habitual residence in Poland at that time.

S issued proceedings in the Irish High Court seeking an order for the return of the children under the Hague Convention. The court appointed a psychologist to interview the eldest child, A, then aged seven. He expressed a desire to remain in Ireland. He said that he “had fun in Ireland, liked living with the respondent and his sibling. He objected to returning to live in Poland with the applicant because he alleged the applicant beat and screamed at him and grabbed him”.

The High Court accepted that A was sufficiently mature to have his views taken into consideration. But nevertheless, it granted S an order for the return of the children to him in Poland.

The Court of Appeal reversed that decision. It held that it could exercise its own discretion based on the same facts that were before the High Court; that the High Court order would return A to a situation which would be intolerable under Article 13; and reversed the decision regarding the younger child, also.

S applied to the Supreme Court for leave for a further appeal.

Granting leave, the Court determined that the case raised matters of general public importance in that it was likely:

“that the decision in this case would be seen as establishing a bench mark for other cases under the Hague Convention, in terms of the age of the child the nature of the views expressed and the manner in which the information was provided to the court”.

Source

If you have any questions or concerns regarding International Parental Child Abduction feel free to contact CARI Child Abduction Recovery International 24/7. We are always available at info@childabductionrecovery.com or by calling our CEO Adam Whittington directly +46 707385598

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