F (A Child)

This is an application for permission to appeal on notice, with appeal to follow if permission granted. The order that we review is the order of Holman J of 5 February 2009 in proceedings brought under the Hague Convention of 1980 and the Brussels II Revised Regulation. The background history is helpfully set out by Mr Nicholas Anderson, who represents the Polish appellant father, in his skeleton argument. The parents are in their 30s, married in 1999 in Poland, and in that year and in that country their only child, Prezemyslaw, was born. He is, accordingly, now nine-and-a-half. The parents separated in Poland in 2005 and were divorced in Poland in 2006. The Polish proceedings provided for the future of Prezemyslaw and the respective rights of their parents, a process that culminated in an order in the Polish Court on 24 July for the father’s contact with Prezemyslaw to advance from sporadic ad hoc to alternate weekends staying contact. That order may have contributed to the mother’s exodus at the beginning of August. She and Prezemyslaw were travelling to Swansea, where her current Polish boyfriend was living. What were her real intentions at that stage are open to question, but she presents it as her decision to take a holiday in Swansea and to return with Prezemyslaw for the beginning of the Michaelmas term in Poland. However, that she clearly did not do, and the Polish Court was not notified of her whereabouts until a date in early 2008 which has not been ascertained.

It is the father’s case that he did not know of Prezemyslaw’s whereabouts until April 2008. It is established that, on 16 June, the London Central Authority received a request from the Warsaw Central Authority for the issue of an application under the Convention and the regulation. There is no doubt that the application was issued here on 24 June and a location order was made on the following day. The orders were served on the mother and clearly the location was no problem on 28 June and the first hearing was before Holman J on 1 July. The litigation chronology from issue on 24 June to trial on 4/5 February has been fully and clearly recorded by Mr Marcus Scott-Manderson QC, who represents the mother. The chronology is accepted by Mr Anderson as being accurate and fair. Anybody reading it will see that the inordinate delay was the consequence of the determination of the mother’s alternative complaints that the father had not been exercising rights of custody under article 3 of the Convention at the date of her wrongful removal or wrongful retention.

A single joint expert a Polish practitioner, named Bak, was jointly instructed and his report was available in early August and in time for a directions appointment on 11. Advocate Bak opined that the father had not been exercising rights of custody and on that basis an application was drafted for permission to withdraw the originating summons issued on 24 June. However, before that application proceeded the plaintiff reversed the abandonment and sought leave to instruct an expert of his own. That leave was granted on 5 September by Charles J and, as my Lord, Wilson LJ, has pointed out, that is hardly surprising, since on 12 August the father obtained from the court in Poland some declaration or ruling to the effect that he had indeed been exercising rights of custody at the relevant date according to Polish law. There was then a degree of confusion and certainly great waste of time in obtaining the opinion of the expert solely instructed for the father. The formal hearing was adjourned as a result of these difficulties on 13 October, 29 October and 17 November. There was one instance when the case was listed at risk and not heard as a result of no judge being available. However, that was only on 29 January and it led only to the delay of less than a week.

Holman J heard evidence from advocate Bak and from the expert instructed by the father by video link. It was the only oral evidence he heard. Mr Scott-Manderson tells us that, effectively, advocate Bak under cross-examination changed his expert testimony and conceded that the father has been exercising rights of custody at the relevant date. So, inevitably, that defence raised on the mother’s part evaporated. The defence that the judge had to evaluate then was the defence that Prezemyslaw objected to return. That, of course, is a Convention defence under article 13 which provides in part:

“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 meeting that defence Mr Anderson was in some difficulty. He had no instructions or evidence that would enable him to challenge the clear case presented by the mother that Prezemyslaw objected to return. Her case was particularly clear since it was fortified by no less than three reports from a CAFCASS officer in Wales who had had extensive conversations with Prezemyslaw, nor could Mr Anderson challenge that Prezemyslaw had attained an age and degree of maturity at which it was appropriate to take account of his views. The CAFCASS officer was very plain that Prezemyslaw had a maturity in advance of his chronological age, and so Mr Anderson had the difficult litigation position that bound him to accept that the gate was open to the exercise of the judge’s discretion as to whether to order summary return or no. The judge, in a particularly full and careful judgment, explained precisely why he exercised that discretion against ordering summary return. In particular, I cite paragraphs 62, 72 and 73, 78-80 inclusive:

“62.

Thus, the real issue on this aspect of this case, and the one of far and away the most difficulty, is what discretionary decision I should now reach. I stress that the language and scheme of the Convention is that Article 12 is the dominant Article. My starting point must be, and is, that I should order the return of this child forthwith. The only effect of Article 13 is, as it has sometimes been put, to ‘open the door’ to the exercise of a discretion not to do so. I stress, however, that the question for my consideration is not whether or not, in the long term, and after a full welfare-based investigation, it is more appropriate and in his best interests for Prezemyslaw to live in South Wales or in Poland. The question for me is whether I ought to order his return forthwith – that is, summarily.”

“72.

I wish to make absolutely clear at this hearing, after only a very partial welfare investigation and no oral evidence form the parents or indeed anyone else except the experts, I am in no position to form any view at all as to the longer term best interest of Prezemyslaw. He is, after all, a Polish child. His mother still primarily speaks Polish and everything has had to be interpreted to her during the course of this hearing. His own first language appears still to be plainly Polish, since he communicated with Miss Elias through Polish. His parental families on both sides are entirely Polish, and for the whole of his life, until the age of eight, he had always lived in Poland. It is far from self-evident that it is in his best interests to remain long-term in South Wales and many factors may require to be balanced. But, the relevant question under the Convention is how far is it in his welfare to return forthwith to Poland, or, alternatively, to remain where he is until a more profound decision is taken by a court, either in Poland (pursuant to Article 11 of the Council Regulation Brussels II) or here, as to where, and maybe also with whom, he should live in the long term.

73.

However, so far as his shorter term welfare is concerned it seems clear to me that his own views are indeed consonant with his own best interests. However it is come about, the fact of the matter is that he has now lived in Swansea for eighteen months. He is clearly well settled in school there, with many friends there. He enjoys himself both in school and in South Wales generally. His whole maternal family have, rightly or wrongly, re-established themselves in South Wales. It is true that the grandparents’ flat remains in Poland, but it has been rented out. Meanwhile, all three of the currently key adults in his life have obtained secure remunerative employment in South Wales. So far as his own welfare is concerned, it seems to me now that it would not be in his best interests to have to return forthwith – that is, within a very short period of time, and abruptly, to Poland. It seems to me that his own views currently coincide with his best interests in the short and medium term. It may well be, as I have said, that he should return in the longer term to Poland, but that my require to be done in a planned and orderly way after making orderly arrangements as to schooling, accommodation, and employment for his mother and, indeed, his grandparents.”

“78.

As well as all these considerations, though, I do have to have regard to what Baroness Hale described as ‘general Convention considerations’. It is absolutely plain that the overall purpose and policy of the Hague Convention is to deter international child abduction and to ensure so far as possible that abducted children are returned so that longer term decisions about their future are taken in the state of their habitual residence. I must, and do, give very great weight to the policy of the Convention.

79.

The House of Lords have made plain that there is no super-added test of ‘exceptionality’ within Article 13. Even so, it is very exceptional indeed for me personally to permit a defence based on Article 13(b) or the child’s objections (unless the child is of a considerably greater age than this child) to prevail over the purpose and policy of the Convention. Indeed, I cannot currently recall any case in which I have exercised the discretion to permit the objections of a child of anything like the age of Prezemyslaw to stand in the way of return.

80.

I have, however, come to the decision, balancing all the factors, that this is indeed an exceptional case. However it has arisen, I do attach weight to the fact the Prezemyslaw has now been here for eighteen months. I do attach weight to the fact that he is living in South Wales in an environment in which, now, the whole of his maternal family has settled. It does seem to me that it would be a very massive and damaging upheaval indeed for him if I were to require his return now to Poland ‘forthwith’. As he himself does reject so strongly and for articulated reasons to such a return, I propose to exercise a discretion to refuse to order the return of the child to Poland forthwith under Article 12 of the Convention.”

Given the clarity of Holman J’s explanation, the task faced by Mr Anderson in the court this morning is a formidable one. He has advanced what argument he can with skill and persuasion. In particular, he seeks to move us by saying that Prezemyslaw is a Polish child born of Polish parents, who moved from his Polish homeland in August 2007. He, his mother and his maternal grandparents, although all resident in Swansea, are Polish speakers, and there are Polish proceedings on foot to decide all issues relating to Prezemyslaw’s welfare. Accordingly, says Mr Anderson, all the pointers were to getting Prezemyslaw back to Poland as soon as possible to enable the Polish Court to take the welfare decisions with Prezemyslaw available in that jurisdiction. He submits that Holman J failed to reach that obvious conclusion because he gave undue weight to some factors and inadequate weight to others. That is an extremely difficult submission to pursue in this court, where the judge has plainly factored in -- and not ignored -- any of those considerations. The weight that each deserves is very much a matter for the judge. Mr Anderson has sought to say that the judge has looked at Prezemyslaw’s welfare through an entirely one-sided perspective. He has only heard what the mother has to say about it. He has only heard what the Welsh CAFCASS officer has to say about it, and he has not factored in what contribution the father would make to any evaluation of Prezemyslaw’s welfare.

That submission does not begin to run for me, given the clarity of the judge’s explanation that he only considered Prezemyslaw’s welfare in the context of whether to order a summary return. The judge was not taking any position in relation to Prezemyslaw’s longer term welfare. He was not taking any position in relation to any properly managed and properly time-framed return to Poland, such as might result from a full enquiry undertaken either in this jurisdiction, in Lordship, or in the Polish Court, the court of the child’s habitual residence. That brings me to what seems to me to be a point of most obvious reality. This is a case in which the refusal of a return order triggers the provisions of article 11(6)-(8). Article 6 provides that, if a court has issued a non-return order under article 13 of the Hague Convention, the court must immediately, either directly or through central authority, transmit a copy of the non-return order under the relevant case papers to the court with jurisdiction or the central authority in the member state where there child was habitually resident immediately before the abduction.

Article 11(7) provides that the court in the member state of habitual residence, unless already seized, must transmit the information from the foreign court to the parties and invite them to make submissions. It is common ground that in this case the Polish Court was already seized and so the obligation upon the Polish Court to notify under article 11(7) does not arise. What, however, must be stressed is that under article 11(8), if the Polish Court determines -- notwithstanding the non-return order of Holman J -- that Prezemyslaw must be returned to his homeland and issues an order to that effect, then the order is automatically enforceable within any member state pursuant to the provisions in chapter 3 of the regulation. Now Mr Anderson informs us that the High Court complied with its obligation under article 6 within a week of the judgment of 5 February. We do not know what steps have been taken by the Polish Court post-receipt of the papers. It can be assumed that nothing much has happened, because Mr Scott-Manderson did not inform us that his client would be served with any process within the Polish Court, and, as my Lord has observed obviously, no process in the Polish Court could be summary and there would have to be the fullest opportunity for the mother to engage in that process.

But it perhaps raises the strategic question: where, in a case governed by the Brussels regulation, the left-behind parent fails to obtain the summary return order, and where the court in the requesting state has been seized prior to the abduction, is not the simpler course for the disappointed parent simply to engage the article 11 process and attain an order there which must be automatically enforced here? Mr Anderson will say, well, it seemed right to have a go in the Court of Appeal because, if he were to succeed here, he would be entitled to summary order, which is even better than the certified order under article 11(8). That may be true in this jurisdiction, where the Court of Appeal acts with extreme expedition in conducting Hague appeals. This case was only referred to me on 3 March and I immediately provided for a hearing within approximately two weeks. In some other jurisdictions, where the appellate process can extend for twelve or more months, then it seems to me that the disappointed left-behind parent is strategically wiser to pursue the special process that article 11 provides rather than the appellate process in the requested state.

One other observation that I wish to make is to question the process that was adopted in the present case for resolving the mother’s assertion that the father had not been exercising article 3 rights of custody at the relevant date.

Mr Manderson says that there had been a number of Polish cases already before the High Court and that more are in the pipeline, in which this question, as to the extent of the left-behind parent’s rights, is in issue. He says that there was a case of Re W (Children) [2008] EWCA Civ 538 before Charles J in October 2008, not a reported case, but one in which the same experts testified as testified here. There is the case of Re: L [2000] 2 FLR 334, which was before the President, in which there were no experts and in which the President held that the left behind parent had been exercising rights of custody, and his decision assisted Holman J in arriving at the same conclusion in the present case. The case of Re D (a child) [2006] UKHL 51, which was considered by the House of Lords relatively recently, should be a lesson to anybody considering the resolution of such a question by the use of opinions submitted by contending practitioners or academics. This case endeavoured to avoid that risky route by the instruction of a single joint expert. Unfortunately the selected expert turned out to be highly fallible, giving an unreliable opinion that subsisted until he was cross-examined. So there are, it seems, also risks attached to the method of single joint experts instructed.

Is article 15 of the 1980 Convention therefore the preferred route? Well, there are difficulties with article 15 also, because a number of European States have either not incorporated article 15 into their domestic law or, alternatively, have no experience of its operation. In those states the consequence of requiring one of the parties to obtain an article 15 approach declaration is either no beneficial result or huge delay. So I wonder whether this case does not present an opportunity to draw practitioners’ attention -- and obviously the attention of the case workers in the central authority -- to the possibility of making greater use of the European network of specialist family judges attached to the statutory European judicial network? Taking the present case, the network judge for Poland has been an outstanding collaborator whenever my office has appealed to him for information or assistance and, accordingly, practitioners and the central authority would be well to consider approaching my office in any case which raises an issue as to the domestic law in the requested state. With the experience that we have of past dealings with member states, it would be possible for my office to offer pragmatic advice as to which would be the best route to follow in a particular case: whether to go for a single joint expert; whether to go for an article 15 declaration; or whether to go for an opinion from the liaison judge as to the law of his own country, an opinion that would not be binding but which would perhaps help the parties and the court of trial to see the weight, or want of weight, in the challenge to the plaintiff’s ability to cross the article 3 threshold. Even the formal determination by a court in the requesting state of the status of the father’s rights according to the domestic law is not determinative, because in the end a question has to be decided according to the autonomous law of the Convention and not the domestic law of the requesting state. But in practice, in the majority of cases, a definitive ruling from the court of the requesting state under article 15 will be determinative of the issue. Cases in which the requesting state will conclude that the determination of the requesting state is not consonant with the autonomous law of the Convention will be rare indeed. So, having ventured to express those views on practice, which are not necessary for the determination of the application for permission, I would grant a permission which would perhaps not otherwise be justified and dismiss the resulting appeal.

I agree.

And so do I.