Family - Child abduction - Convention on the Civil Aspects of International Child Abduction, 1980 (“Hague Convention”) - Regulation (EC) No 2201/2003(‘Brussels II bis Regulation’) - Wrongful removal - Acquiescence to retention - Delay -  Defence of “well settled” - Lack of subterfuge 

Facts: The applicant/father sought an order for the return of the child from the jurisdiction of Ireland to Poland where the said child was habitually resident with the plaintiff while the respondent/mother was exercising the visitation rights. The applicant asserted that the respondent removed their child without his consent from the creche and had taken that child to Ireland. The respondent presented some Facebook messages and alleged that those messages had amounted to the plaintiff’s acquiescence to the retention of child in Ireland. The respondent also contended that the said child had well settled into Ireland with friends and extended family as the respondent had found a partner and gave birth to another child. The respondent thus argued that the said child was living happily with her, her partner and the child’s half-sister, and they all lived together as a family unit. 
Held: Ms. Justice Ni Raifeartaigh refused to grant an order for the return of the child. The Court held that the respondent had wrongfully removed the child from the jurisdiction of Poland as at the time of the said removal, the applicant was exercising his custody rights over the child. The Court, however, held that based on the evidence of the child’s school employees and the affidavit of the respondent, it was clear that the child had well settled into his environment, and he was a happy, outgoing and an intelligent child. The Court opined that the Facebook messages did not reflect the intent of the father to consent for the removal of the child. The Court observed that there was an unexplained delay of filing the present proceedings by the applicant to request for the return of the child, which went against the applicant. The Court held that when the child was removed from Poland, he was two years old and at present, he had spent half of his childhood in Ireland and was showing potential for excellent growth and development, which could not be hindered. The Court held that the major objective of the Hague Convention namely, the deterrence of child abduction, could not be fulfilled in the present case as it would have a devastating effect on the well being of the child. 
J (J) v J (P)
10/2/2017 No. 2016/34 HLC [2017] IEHC 68