A father has said he is "shattered" after the courts in Poland ruled that his wife, who took their young children from this jurisdiction five years ago, can keep the children in Poland.
The woman was given permission by the Irish courts to bring the children to Poland for a short holiday in late 2016, but she never brought them back.
Now the courts in Poland have ruled that she can keep the children there, following an "extraordinary complaint" being filed in the Polish supreme court by the minister for justice, Zbigniew Ziobro, who is also the Polish public prosecutor general.
The making of such a complaint direct to the supreme court is a controversial issue in Poland, according to a Polish legal source, and comes against a backdrop of interference by the Polish government in the legal system that is causing a crisis for its membership of the European Union.
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What is happening to the rule of law in Poland can seem abstract, said solicitor Niall Walsh, of Peter Connolly solicitors, who is acting for the father in this jurisdiction.
“But here is how it affects a person on the ground who has put his complete faith in the system… and finds himself not being able to see his children.”
The father successfully secured an order in 2017 from the lower courts in Poland that the children be returned to Ireland but the ruling was revoked following an "extraordinary complaint" to the Polish supreme court by Mr Ziobro, acting in his role as public prosecutor.
“I have been shattered,” the father told The Irish Times. “As a father I have tried to retrieve my children, even to meet them so that they know their father, so they don’t start to hate me.”
Joint custody
When the couple’s marriage broke down some years ago, the father was given joint custody and visiting rights.
After the mother failed to return to Ireland with the children, the father successfully secured a ruling from the Polish courts that the children be returned to Ireland.
He took the case under the Hague Convention, to which both Ireland and Poland are signatories.
The convention stipulates that children who are the subject of custody orders and who are taken from the country where they are habitually resident, should be returned to the country of original jurisdiction, save in exceptional circumstances.
One of the objectives of the convention is to prevent parents who are in dispute over their children from gaining an advantage by bringing them to another jurisdiction.
In 2016, after the marriage broke down, the mother applied to the Irish courts for leave to move to Poland with the children, but was refused.
Around the same time she made a successful application to the District Court for a barring order against her husband, accusing him of physical and sexual assault.
The husband appealed the order to the Circuit Court, which set aside the order and awarded costs against the wife, court documents seen by The Irish Times show. The husband at all times denied the allegations.
“In the five years [since Christmas 2016], I’ve seen the children about 10 times,” the father told The Irish Times.
“The last time was September 2020, when I saw them for five minutes. Since then I haven’t seen them.”
Cancelled order
That Polish supreme court’s ruling, made in April of this year, cancelled the order made almost four years earlier that the children should be returned to Ireland. It grounded its decision on the alleged violence against the mother, which was at all times disputed by the father.
The supreme court told the lower court to reconsider the case and to take into account the potential that the children might be harmed if they were returned to Ireland. No accusation against the father of any assault on the children has ever been made.
The circuit court in Poland made a new ruling in the case on September 1st, finding that the children did not have to be returned to Ireland. Meanwhile, no order has been made by the Polish courts granting the father access to the children.
The father told The Irish Times he has been to Poland almost 20 times, has attended every court hearing that he can, continues to pay maintenance, and always travelled to Poland a few days before each court hearing so that he could meet the children.
When the children were living in Ireland they were speaking English, but now that they are in Poland they are speaking in Polish and have lost their English. “We cannot communicate.”
The man may seek a ruling from the Irish High Court that Ireland, and not Poland, has jurisdiction in the case, though it is not clear whether the Polish system would accept any such finding.
