On 13 May 2020, we heard a mother’s appeal from a return order made under the 1980 Hague Child Abduction Convention (“the 1980 Convention”). At the end of the hearing, we informed the parties that the appeal would be allowed and that the father’s application would be remitted for rehearing. At the same time, we asked the parties to consider engaging in specialist mediation with the organisation Reunite. I now set out my reasons for agreeing with this decision.

I would add, as a preliminary observation, that this was a far from straightforward case, both factually and legally, and its resolution was not assisted by the fact that the mother acted in person at all stages of the proceedings until this appeal. This is not a criticism of the mother, who tried to obtain legal aid but (we were told) did not initially qualify because of her means, but it meant that her case was not presented with the clarity with which it has been presented on this appeal. The consequent effect is that this court has had a significant advantage in contrast to the Deputy High Court Judge who heard the case below. I would also emphasise that this is no criticism of Ms Baker, who acted for the father, and who appropriately sought to assist the court but could not, of course, formulate the mother’s case for her.

The child at the centre of the proceedings is M, a boy now 7 years old. He was born in Poland following a brief relationship between his parents, who are Polish nationals. In 2013, the Polish court limited the father’s parental responsibility, such that he retained the right to share in the making of important decisions about M’s life. In 2015, it made an order extending M’s contact with his father to include alternate weekends and holiday contact.

In July 2018, with the father’s agreement, the mother travelled with M (together with the mother’s older daughter, then aged 18) to England for the purposes of a holiday. In August, the mother then told the father that she wanted to remain in England for a few months to do further work on a business that she was intending to set up. The father’s case was that he was not happy about that but that he acceded to an extension on the basis that M would be returned to Poland by the end of the year. M started school in England in October 2018. In the autumn of 2018, the father, who was working in Germany at the time, visited England twice to see M. In November 2018, the mother became engaged to a Polish man who had been living in England for fourteen years and had two children of his own by a previous relationship in this country.

At Christmas 2018, the mother and M returned to Poland for the holidays. M spent several days with his father, and then returned to England with the mother. The father again visited M in England in February 2019. By agreement, M visited Poland over Easter 2019. He was collected by his father on 7 April and was due to be returned to his mother on 17 or 18 April. However, the father did not return M, and instead applied to the Polish court on 17 April for M to live with him. The mother applied for M’s return to England under the Hague Convention, asserting that the father was retaining him away from his country of habitual residence, namely England and Wales. She also cross-applied to the Polish court for a variation to the 2015 contact order.

On 1 May 2019, the mother regained care of M during a period of contact agreed between the father and the maternal grandmother and she returned with M to England at the end of the month. On 3 June, she withdrew her Hague Convention application on the basis that M was back in her care and on the following day those proceedings were dismissed by the Polish court. The domestic Polish proceedings brought by both parents have continued, with hearings taking place in December 2019 and January and March 2020.

On 16 July 2019, the father applied to the Polish Central Authority for the return of M to Poland. Although we did not explore this during the hearing, I would assume that the application was not received by the Central Authority here until shortly before the application was issued on 29 October 2019. Standard directions were given on paper on 30 October including one for the mother to file “an answer and any evidence in support of that answer”. On 13 November, a hearing took place before a Deputy High Court Judge. The father was represented by counsel and the mother was in person. A direction was made for Cafcass to prepare a report addressing M’s wishes and feelings in respect of returning to Poland and the question of whether M was settled in England.

The Cafcass report, by Ms Lauren Doyle, was filed on 9 January 2020, after a visit to M in December. Ms Doyle did not consider that M objected to returning to Poland.

The final hearing took place before Mr Nkumbe Ekaney QC, sitting as a Deputy High Court Judge, on 17 January 2020. The father was represented by counsel and solicitor. The mother acted in person because, as referred to above, her attempts to get legal aid at that stage had failed. In the morning, evidence was given by both parents but not, by agreement, by Ms Doyle. The judge heard submissions after lunch and gave an ex tempore judgment that afternoon, ordering M’s return to Poland.

Following the order, the mother obtained legal representation and on 7 February 2020 issued her Appellant’s Notice. On 27 February, I granted permission to appeal. On 19 March, the parties wrote a joint letter to the judge asking him to give further reasons on one aspect and on 1 April a short document headed “Clarification on habitual residence” was circulated by the judge.

At the outset the judge described the case as troubling and difficult. He described the history and summarised the parties’ positions in this way:

It is unfortunate that the mother had not filed an answer as directed, although she did file a statement. It may be that she did not appreciate that the purpose of an answer is to specify formally which, if any, of the exceptions to an order for summary return set out in the 1980 Convention she relied upon. At all events, it can be seen that the mother was asserting that the father had either consented to or acquiesced in (“he was quite content with the arrangements”) M remaining in England. Indeed, at a later point in the judgment, the judge recorded:

It is also clear from this earlier exchange in the course of submissions that both consent and acquiescence were live issues, but that they became intermingled and were not considered separately:

The judge then directed himself on the law concerning Article 3. He found that the father was exercising rights of custody in July 2018 when M first came to England. In relation to habitual residence, he directed himself to the summary in Re B (A Child) (Custody Rights: Habitual Residence)[2016] 4 WLR 156. As to wrongful removal or retention, he noted Re C (Children: Anticipatory Retention)[2018] UKSC 8, [2019] AC 1, and the judgment of Lord Hughes in paragraph 51. As to the issue of consent, he cited PJ (Abduction: Habitual Residence: Consent) [2009] 2 FLR 105, to the effect that clear and unequivocal consent to removal is required for the defence to be established. He said that there would be a wrongful removal or retention of M unless his father consented to the requisite standard. He noted that the burden was on the mother to establish an exception on the balance of probabilities.

In the course of the judgment, the judge made a number of findings of fact:

The father had consented to the holiday in July 2018.

As time went on, the mother told the father that she had set up a business and was going to be staying longer in England. The father was led to believe that the mother and M would return to Poland but it was unclear when that would be.

There was no evidence to show that the couple agreed in the autumn of 2018 that M’s move to England would be permanent.

By the time of her engagement in November 2018, the mother must have been seriously contemplating that she would be staying in England permanently, but she did not communicate her private thoughts to the father.

When the mother came to Poland in December 2018 she did not indicate that she would be remaining permanently in England.

There was a distinct lack of clarity about the basis on which the mother and M returned to England in January 2019. The mother’s assertion that by that time the father understood and acquiesced in M staying here was not accepted. The father had been placed in an impossible position and he had to accept the reality. He was not consenting to it and, in any event, there were mixed messages being given by the mother that she would return to Poland with M.

Between January and Easter 2019 the father took no steps to try to secure M’s return to Poland.

At Easter 2019, the father stayed with the mother and her fiancée. There was drinking to celebrate the father’s birthday and there was an argument between the adults. It was an unsavoury incident which resulted in M being very upset.

The agreement for M to spend time with the father in Poland in April 2019 was in the context of the father having a reasonable expectation that at some point M would return to Poland.

On 14 April 2019, while M was with his father in Poland, the parents spoke on the telephone. In parts of the conversation the mother was reassuring the father that M would return to Poland at the end of the academic year and that he was not staying permanently in England.

The judge then expressed his conclusions in this way:

The mother’s engagement and reconstitution of her family in this country repudiated the father’s rights of custody in that the mother unilaterally decided that M would live permanently in this jurisdiction. It flies in the face of common sense to imagine that the mother would have agreed to the engagement without contemplating the consequences for M or on her declared intention to return to Poland. It is reasonable, in my view, to conclude that once she made that commitment the reasonable fallout would be permanence in the UK or in England and the repudiation of the father’s rights, unless, of course, the father was consenting to the child remaining here. I do not find that there is evidence that he did so clearly and unequivocally.

If I am wrong about that, Ms Baker points out that, as an alternative, May or June 2019 when the mother removed M from Poland without the father’s consent and despite being in the midst of Polish proceedings, was in breach of the father’s rights of custody. I have some sympathy for that argument. The difficulty with the argument, however, is that it stretches the question of habitual residence, but Ms Baker says that the way around that concern really is to say that although habitual residence may have changed to England, at the point at which the father removed the child from the mother’s care and brought him back to Poland, then the pendulum, as it were, or the seesaw, swung back to Poland and therefore his habitual residence was in Poland. I hope I have accurately and favourably reflected Ms Baker’s argument. I have to say, that has some force as well.

So, if asked whether or not there was a breach of the father’s custody rights, I would say undoubtedly in the affirmative, yes. When is the relevant date? This court says some time in November 2018. It does not endorse Ms Baker’s bold point about the 10 November. The point at which the mother made the decision that she was going to be engaged to her partner in England and live here, she repudiated the father’s rights of custody. I consider that those circumstances fall squarely within the repudiatory retention as defined by Lord Hughes in para. 51 of Re C (above). If I am wrong about that, my view is that the second date of June 2019, when the mother removed M from Poland without the father’s consent and despite them being in the midst of Polish proceedings was, in my view, in breach of his custody rights.

I cannot agree with the mother when she says that the father consented to these arrangements. I find a dearth, if not the absence, of evidence of consent to the requisite standard. I do not believe there was clear, unequivocal consent in this case and therefore I do not find any basis for any of the exceptions that would ordinarily be considered by the court.

My decision is, therefore, that it will have to be the Polish court that determines the welfare issues that are crying out to be dealt with in this case. At the outset of the case, I asked the parties about arrangements were I to accede to the father’s application for a return order. I was told that the father would be prepared to wait until the end of this half term and for the return to be effected during the half term. The mother was to find out when the half term would be and was to tell the court and I will have that discussion with the parties in due course.

The father offered financial assistance to the mother for flights and for the payment of accommodation. He also offered undertakings which are set out on page C157 of the bundle. He is not to attend the airport on the return date. He is not to use or threaten violence against the mother, nor to instruct or encourage any person to do so. He is not to separate or cause separation of M from his mother, save for the purposes of the contact with him. I am going to add that he is not to denigrate or, indeed, discuss the mother’s family with M and, of course, he has undertaken to provide maintenance for M whilst the Polish court determines this issue.

It can be seen that the judge reached the following conclusions:

There had been a repudiatory retention in November 2018, alternatively in May/June 2019.

M was habitually resident in Poland in May 2019 (there was no other express finding about habitual residence).

The father had not consented to M’s retention in England.

It will also be seen that the judge did not address:

Acquiescence.

The (unpleaded) possibility of retention having occurred in August 2018.

Settlement.

The judge was requested to, and gave, the following elaboration of his conclusions regarding habitual residence:

There was a distinct lack of clarity from the mother about her intentions. Even after her engagement in November 2018 when I found that she formed an intention to remain, there remained a general state of flux regarding her plans and there was a lot of uncertainty about her future.

The establishment and success/failure of her proposed business would influence whether the mother stayed in England permanently or not.

There were a number of discussions between the parents and the mother sent mixed messages to the father about her intentions.

She said in terms on at least one occasion (paragraph 30) that she (and therefore M) wanted to live in Poland and not England and that the child would not be staying permanently in England.

In a telephone conversation between the parents on 14.04.2019, which the mother accepted took place, I found that the mother told that father that M would be returned to Poland at Easter that year or at the end of the academic year.

M continued to retain his links with Poland e.g. he spent periods with his father in England and in Poland. He also spent time with his maternal grandmother in Poland in April/May 2019.

The mother applied to the Polish Court in April 2019 for permission to remove M permanently to England which presupposes that she accepted that the child was still habitually resident in Poland and that Poland was the appropriate court to make decisions about M’s welfare – which is a conclusion with which I agree.”

On behalf of the mother, Mr Devereux QC and Dr George make these broad submissions:

The judge was wrong to identify retention as having occurred in November 2018. He should have considered whether there had been a wrongful repudiatory retention in August 2018, but he did not correctly analyse the critical authority of Re C (above). He misdirected himself by referring to the irrelevant question of whether and when the mother had formed an intention to remain ‘permanently’ in England.

Had the judge found a retention in August 2018, the question of settlement would have arisen.

Even if the judge was right about retention having occurred in November 2018, he did not consider the law in relation to acquiescence or analyse habitual residence. Consent and acquiescence are mutually exclusive concepts, but the judge, insofar as he addressed acquiescence at all, elided it with the test for consent. He was not referred to, and did not apply, the key authority of Re H (Minors) (Abduction: Acquiescence)[1998] AC 72.

If retention occurred in May/June 2019, the judge’s analysis of the issue of habitual residence was inadequate in his judgment and flawed in his clarification. He did not explore M’s connections with England in a child-focused way and he gave excessive weight to matters that were irrelevant.

Given the settlement report and the length of time that M has been here, and his bond with his older half-sibling, it would be intolerable for him to be returned to Poland; alternatively, and more realistically, the sibling bond should be taken into account in exercising a discretion not to return if a defence was made out.

In response, Mr Setright QC and Ms Baker argue:

The judge was entitled to select the date of retention that he did after the father had offered him to two possible alternatives, while the mother had not offered him any. His conclusion was reasonable and not wrong.

The analysis of habitual residence, though limited, was adequate overall. The judge must be deemed to have taken the contents of the settlement report into account.

The issue of acquiescence was complicated by the fact that the mother did not appear to be running that case, although it did emerge in the course of the hearing. The judge’s rejection of that defence engaged with it sufficiently and was not in the round wrong.

Issues of settlement or discretion were not reached. The settlement report had in any case to be read in the light of the fact that Ms Doyle’s interview with M took place six months after the latest date for the retention.

The case is very far from falling within Article 13(b), and the prospect of M being separated from his sibling is remote.

Mr Devereux and Mr Setright were in agreement that if the appeal was allowed, the matter would have to be reheard.

I start by acknowledging again that the judge was handicapped, in contrast to the expertise available to this court, by the fact that the mother acted in person. As referred to above, the consequence was that the mother’s case, which potentially raises a number of difficult legal issues as well as a number of factual issues, was not advanced with the requisite degree of clarity.

However, whilst I have every sympathy for the position the judge found himself in, the result has been that he did not sufficiently engage with the issues which had to be addressed in order for the father’s application under the 1980 Convention to be properly determined. I fully accept that, as submitted by Mr Setright, the 1980 Convention requires a quick, summary process and that a judge is not required to produce an “extensive” judgment or, as he put it more colloquially, a judge is not required “to make a meal of it”. However, whilst submitting that the judge had sufficiently addressed the relevant issues, Mr Setright frankly acknowledged that he could have dealt with the issue of acquiescence more fully and that, the determination in respect of habitual residence provided “narrow foundations” on which to support the judge’s conclusion.

I do not deal with all the issues referred to above, in part because the judge at the rehearing will have to consider what issues need to be determined having regard to the way in which the case is advanced by each of the parties at that hearing. I propose to consider only, and briefly, the issues of retention, acquiescence and habitual residence.

As to retention, there is force in the submission made by Mr Devereux that the judge focused unduly on whether the mother had decided to remain in England permanently for the purposes of deciding when M had been wrongfully retained in England. I acknowledge that this could be said to be based on an unduly textual analysis of the judgment but the critical issue when determining whether a repudiatory retention has occurred is whether, as set out in Re C, one parent has acted in a way which repudiates the rights of custody of the other parent. Whilst a decision by one parent to make the stay in the new state permanent rather than temporary, as the parents had agreed, could form part of a repudiatory retention, it is not a necessary feature. Lord Hughes set out the relevant approach, when the court is dealing with an alleged repudiatory retention, as follows:

The result was, as referred to above, that the judge did not address the possibility of retention having occurred in August 2018.

As to acquiescence, there is a clear distinction between consent, on which the judge focused, and acquiescence which, despite Mr Setright’s submissions, was not addressed by the judge in any sufficient detail. There is also force in the submission on behalf of the mother that, by formulating the issue during the hearing as being whether the father had consented to M living in England permanently, the judge did not enable the mother to advance her case that the father had acquiesced in M’s remaining in England.

The legal approach to acquiescence remains as set out in Re H at p.90 E/G:

As to habitual residence, the judgment, including the clarification, does not contain a sufficient analysis of the relevant factors necessary to explain, or indeed support, the judge’s conclusion as to M’s habitual residence. In addition, as referred to above, the judgment contains no express finding as to where M was habitually resident in November 2018. This might seem to follow from his conclusion that M was habitually resident in Poland in May 2019 but part of the father’s case was that, even if M had become habitually resident in England prior to May 2019, his habitual residence had reverted to Poland after he went there with his father in April 2019.

In his submissions, Mr Setright posed the question as being whether the judge needed to address the specific factors relevant to the determination of habitual residence in this case in more detail than that set out in his addendum judgment. In my view, the answer is clear that he did. His conclusion that M’s “degree of integration in England was not such that his habitual residence in Poland had changed to England” is unsupported by any analysis which focuses of the position from M’s perspective. The factors referred to by the judge are almost entirely directed to the mother’s position, in particular her intentions and whether she had decided to stay permanently in England. I would further add that I do not consider that, as Mr Setright submitted, M’s position was so heavily dependent on the mother’s position that the judge’s analysis might, in any event, have been sufficient.

Habitual residence requires the court to undertake a sufficiently broad analysis of all the circumstances relevant to the child’s degree of integration in the state or states in which he/she is said to be habitually resident. I set out quotations from two decisions which together demonstrate the scope of the enquiry; that parental intention is merely one factor; and that it is stability not permanence which is relevant.

In A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening)[2014] AC 1, at [48], Lady Hale quoted from the operative part of the Court of Justice’s judgment in Proceedings brought by A[2010] Fam 42, at p.69:

It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions.

The test adopted by the European court is ‘the place which reflects some degree of integration by the child in a social and family environment’ in the country concerned. This depends on numerous factors, including the reasons for the family’s stay in the country in question.

It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.

In my view, the test adopted by the European court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors …”

In Re R (Children) (Reunite International Child Abduction Centre and others intervening) [2016] AC 76 Lord Reed said:

Despite Mr Setright’s submissions on this issue, I do not agree that the judge engaged sufficiently with the factors required to determine the issue of habitual residence and, further, it is not clear that he considered where M was habitually resident at any date other than May 2019. In addition, I consider that his brief analysis contains an undue focus on the mother’s intentions as well as on the question of whether she had formed an intention to stay permanently in England.

For the reasons set out above, it is clear to me that the father’s application under the 1980 Convention must, regrettably, be reheard, unless of course the parents can come to an agreement. Subject to the way in which they put their cases at the rehearing, the following questions would be likely to require determination:

At what date did the mother retain M in England?

At that date, where was M habitually resident?

If M was habitually resident in Poland at that date, did the father subsequently acquiescence in the retention (this would seem to be more likely than whether the father consented in advance to the proposed retention)?

If acquiescence (or consent) is established, should M nevertheless be returned to Poland?

If the retention took place more than one year before the issue of proceedings on 29 October 2019, is M now settled in his new environment?

I agree.

I also agree.