GM v KZ

On 12 June 2017 Mr Justice Hayden ordered (Footnote: ¹) that on 31 October and 1 November 2017 a High Court judge would determine the following issues:

At that hearing the father was represented by counsel; the mother did not attend. The order went on to provide that both parties must personally attend the hearing on 31 October and 1 November 2017. It provided that in the event that the mother wished to attend the hearing by video link, in order to give oral evidence and to make representations, then she had to notify the court and the father’s solicitors of her position no later than 4 pm on 26 June 2017. Further, in that event she was obliged to make the arrangements with the Clerk of the Rules to set up and test the video link for the hearing and provide confirmation to the father’s solicitors by 17 July 2017 that the necessary arrangements had been made. On 26 June 2017, the mother sent a letter, which was not received until 4 July 2017, in which she stated that she wished to attend the hearing on 31 October and 1 November 2017 by video link and also that she wished to have the assistance of an interpreter. That letter was received too late, having regard to the terms of Mr Justice Hayden’s order. Moreover, the mother has taken no steps to set up the video link in liaison with the Clerk of the Rules as the order required.

On 11 October 2017, the father parted company with his solicitors GoodmanRay. The father represented himself at the hearing. The mother did not attend and, as explained above, did not participate by video link, no timely notice and no arrangements having been made in accordance with the terms of the order of Mr Justice Hayden. However, the mother’s position was very fully set out in the letter of 26 June 2017, to which I have referred, as well as in two emails of 19 October 2017 and a further email of 1 November 2017, all of which I have carefully considered. Pursuant to Family Procedure Rules 27.4(2) and (3) I am satisfied that the mother has had reasonable notice of the hearings and that the circumstances of the case justify proceeding in her absence.

The children are LM, born on 27 April 2012, and now aged five; and HM, born on 19 November 2013, and now aged nearly four. Their parents are GM, now aged 38, a Hungarian national who is a psychiatrist by profession, and KZ, now aged 42, a Polish national who is a psychologist by profession. Both parties are highly intelligent and are proficient in the English language. They met in 2010 at a conference in the USA. They were married in Hungary on 8 September 2012, five months after the birth of LM.

Following the marriage, the mother and the newly born child travelled to this country to live as a family with the father in Bristol. Both worked in this country; the father as a psychiatrist doing locum work and the mother in private practice as a psychologist for patients both here and overseas. Her overseas patients she treated via Skype.

By January 2014 the mother and father had saved about £30,000 from their earnings here. A further £30,000 was borrowed from the father’s parents. Thus, the mother and father were able to put down £50,000 towards the purchase of a property in Brighton and have a sum left over for refurbishments. The property cost £210,000 and the balance of the purchase price was raised on mortgage, for which purpose the parties declared their respective earnings and, no doubt, made representations that the property was for their personal occupation. The completion took place in January 2014 and the whole family took up occupation at that point.

It is obvious that there were difficulties in the marriage and this resulted in the mother spending quite prolonged periods in her homeland of Poland. However, she always returned here and the great majority of her time was spent living and working in this country. In September 2015, the father commenced studying for a PhD at the University in Brighton, and at this time LM was enrolled in a nursery and a nanny was employed by the parties. In May 2016, the mother and father applied for, and attained, a place for LM to commence school in Brighton in September 2016.

On 19 May 2016, the mother travelled to Poland with the children for a 10-day holiday but she did not come back on the due date. Instead she told the father that she was not returning and that she wanted a divorce.

On 2 June 2016, the mother commenced an application in the court in Lodz seeking custody of the children.

Where were the children habitually resident on 2 June 2016? Obviously, they were habitually resident in England and Wales.

In order to explain this conclusion, I cite first paragraph 44 of the decision of the Court of Justice of the European Union in Proceedings brought by A [2010] Fam 42 where it is stated:

“The concept of habitual residence under Article 8(1) of the Regulations must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, the conditions and reasons for the stay on the territory of the Member State and the family’s move to that state, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case.”

Next, I cite paragraph 56 of the decision of the Court of Justice of the European Union in Mercredi v Chaffe [2012] Fam 22, where it is stated:

“The concept of habitual residence… must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a Member State -- other than that of her habitual residence -- to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that Member State and for the mother’s move to that State, and, second, with particular reference to the child’s age, the mother’s geographic and family origins and the family and social connections which the mother and child have with that Member State. It is for the national court to establish the habitual residence of the child taking account of all the circumstances of facts specific to each individual case.”

Thus, to demonstrate habitual residence by these children in England and Wales there has to be shown some degree of integration by them in a social and family environment – that is all. Manifestly, as at 2 June 2016 that test had been passed very substantially by these children, and I simply do not understand how the contrary could be authentically contended.

Under article 8 of BIIR (Council Regulation (EC) No. 2201/2003), the basis of jurisdiction is, of course, the habitual residence of the children. Therefore, it might be thought that the courts of Poland had no jurisdiction on 2 June 2016, and it was incumbent on the court in Lodz to dismiss the mother’s application. As will be seen, this is exactly what it did on 14 July 2016. However, as will also be seen, after that date, events occurred which sent that straightforward legal solution seriously awry.

The mother’s application of 2 June 2016 was never served on the father. The significance of this will be discussed by me below. That application did not set out, to the least extent, what was the asserted jurisdiction of the Polish court to deal with the matter.

The mother travelled back to England, but without the children, in order to attend mediation with the father. On 12 June 2016, when the mother was in England, but the children in Poland, the father travelled to Poland and a week later, on 20 June 2016 he took the children to Hungary. Following this event, the mother returned to Poland.

On 29 June 2016, the father brought the children back to England from Hungary.

On 30 June 2016, the mother submitted an application to the Polish central authority under the Hague Convention 1980. She believed that the children were then in Hungary, and gave the father’s mother’s address as their whereabouts.

On 4 July 2016, the father made an ex parte application, acting in person, to the Family Court at Brighton. In her order of that day Her Honour Judge Waddicor expressed herself to be satisfied that the children had been habitually resident in the United Kingdom since at least January 2014. She ordered that the children should reside with the father, and that the mother should be prohibited from removing the children from England and Wales. The order was expressed to endure until 18 July 2016. The application and order were immediately scanned and emailed to the mother and were later personally served on her.

In seeming reaction to the order in Brighton on 4 July 2016, on 5 July 2016 the mother supplemented her Polish application of 2 June 2016 with a document prepared on her behalf by a Polish lawyer. In that document, there was a “statement of grounds”. In it the mother stated:

“In the explanatory memorandum to the request [of 2 June 2016] the applicant stated that the participant [father] (permanently residing in England) was violent towards her, in the presence of children, hence the applicant, in order to secure peace and safety for the children, has decided to return to Poland (up to now the parties have resided in England).” (emphasis added by me)

This is the clearest possible concession that up to that time the family was, as a whole, habitually resident in England. This document, also, was not served on the father.

On 6 July 2016, the mother returned to England. On 13 July 2016, she commenced divorce proceedings in Poland.

On 14 July 2016 the mother’s application, as supplemented, came before Judge Rzeznik in Lodz, although the father, who had not been served, was unaware of this. In an impeccable judgment Judge Rzeznik correctly directed herself as to the test for habitual residence as formulated by the Court of Justice of the European Union, and having recounted the facts concluded that “the life’s centre of the family is Great Britain and the state on the territory of Poland had been temporary” and that it was “impossible to identify any features suggesting that the stay of [LM] and [HM] has a “habitual” nature on the territory of Poland”. Therefore, pursuant to article 17 of BIIR, it would be declared that she had no jurisdiction “to start and evaluate the case, as the British courts have”. Therefore, based on that declaration, the application would be refused under the relevant domestic law. In my opinion, this approach of Judge Rzeznik was unimpeachable.

Had that decision been faithfully implemented in Poland this unfortunate jurisdictional battle would never have happened, and by now I have no doubt that the Family Court at Brighton would have resolved the child arrangements as between these parents. But as I will show, it is my unhappy opinion that the Polish court has subsequently wrongly arrogated to itself jurisdiction with the result that there is now, I observe with regret, the risk of inconsistent judgments.

On 18 July 2016, the mother and the father, both represented by counsel, appeared before Judge Waddicor on the return date of her initial order. By then the mother had made some revelation of the existence of the Polish proceedings, but it would seem by no means a truthful disclosure. The order states that the question of habitual residence was at large; and that the court’s earlier satisfaction as to this (see above), based on the father’s representations, was set aside. The order recited that an email had been sent to the International Family Justice Office to seek to establish the status of the mother’s application(s) (sic) in Lodz. The order provided that, subject to holding arrangements, the proceedings in England would be stayed pending confirmation from the Polish court that there is, or are, applications which predate the application to the English court on 4 July 2017; and, if such confirmation were received, inviting the Polish court to determine the issues of jurisdiction and habitual residence. The holding arrangements were that neither parent was to remove the children from England and Wales (save that it was permitted for the children to travel with one or both parents to Poland in the event of a court hearing concerning the children there). In the meantime, the children were to live in the family home in Brighton with the parents separately occupying it on an alternating weekly basis.

What is disturbing is that the mother, who must have known, did not reveal to the court that only four days earlier her application, as supplemented, had been dismissed for want of jurisdiction. Therefore, she allowed the Family Court at Brighton to construct this elaborate order on the entirely false premise that there was in Lodz a live, un-adjudicated, custody application by her - when in fact it had been dismissed four days earlier. Her falsity was reiterated in a text she sent to the father on 28 July 2017 where she said “I still do not know about Polish case. They will send us about the hearing. My Polish lawyer deals with it”. In fact, by that stage her challenge, which I refer to below, to the dismissal of her application on 14 July 2017 must have been well advanced

On 30 July 2016, the mother unilaterally removed the children from England to Poland. She travelled by train with them, as security at airports preventing these removals is fiercer than at St Pancras.

On 2 August 2016 the mother’s Polish lawyers, on her behalf, lodged a “Complaint to Decision of Regional Court for Lodz from 14 of July 2016 (sic)”. This stated, “on behalf of the applicant and on the basis of the power of attorney I appeal fully the decision of Regional Court”. The document uses the language of an appeal, although it is to be noted that it described the mother’s initial application rejected on 14 July 2016 as “an appeal”. Therefore, it may be that the use of the word “appeal” is idiomatic rather than technical.

If this challenge were an appeal properly so-called then the effect is to restore to life the mother’s initial application of 2 June 2016 for the purposes of article 19(2) of BIIR: see Moore v Moore [2007] EWCA Civ 361 where at [103] the Court of Appeal stated in relation to the virtually identical terms of Brussels I:

“The effect of an appeal from a decision by the court first seised that it has no jurisdiction does not appear to be settled by authority: c.f. Dicey, Morris & Collins, Conflict of Laws, 14th ed. 2006, paras 12-047, 12-062; Briggs and Rees, Civil Jurisdiction and Judgments, 4th ed 2005, para 2.205. It is true that a judgment for the purposes of Brussels I is final even if an appeal is pending: e.g. Articles 37 and 46. But the object of Article 27 is to prevent irreconcilable judgments, and as a matter of policy it would be very odd if proceedings in the court second seised could continue even if on appeal the jurisdiction of the court first seised is established. Consequently, we consider (contrary to the view of the judge) that Article 27 applies until the proceedings in the court first seised are finally determined in relation to its jurisdiction. That would mean that the expression in Article 27.1 "until such time as the jurisdiction of the court first seised is established" should be interpreted to include the case where the court first seised has declared that it has no jurisdiction, but an appeal is pending against that decision …”

Therefore, if the application of 2 August 2016 were an actual legal appeal to a higher court then it follows that the Polish court would be, until it had re-considered the question of jurisdiction (and subject to the question of service, to which I will turn in due course), the court first seised for the purposes of article 19(2), and the court in this jurisdiction would be obliged to halt its process. By contrast, if the application were a new application to the first instance court based on fresh evidence not available initially, or on a subsequent change of circumstances, then that would not bring back to life the initial application. Rather, so it seems to me, it would be a later application which would be subject to the priority of the English court which would have become, on dismissal of the initial application, the court first seised, for the purposes of article 19(2).

I am satisfied that the application of 2 August 2016 was not an appeal properly so-called, but was, rather, a new application. This is because it went before Judge Rzeznik on 5 August 2016. She set aside the order of 14 July 2016 and went on “to establish as a security measure until a valid and binding closing of this court proceeding, that the place of residence of the minors will be any place of residence of their mother”. There is no contemporaneous judgment in the papers before me explaining this volte-face on the part of Judge Rzeznik, although a rationalisation of how she had reached a completely opposite conclusion in relation to habitual residence is revealed in a judgment given by her on 7 December 2016 dismissing the father’s application for the return of the children under the Hague Convention 1980. I will deal with this below. However, one thing seems to me to be certain. Judge Rzeznik surely cannot sit on appeal from herself. Therefore, it seems to me that this application of 2 August 2016 has to be characterised as a new application based on fresh evidence. Accordingly, I find, with the utmost respect, that Judge Rzeznik was duty bound under the terms of article 19(2) to stay this new application and to dismiss it once the jurisdiction of the English court had been established. Unfortunately, it appears that this did not happen. Instead, the Polish court has, wrongly, in my respectful opinion, arrogated to itself jurisdiction in this case.

There is an additional reason why the initial application of 2 June 2016 and the later one of 2 August 2016 cannot establish priority over the English proceedings. That is because they were never served on the father. Article 16 of BIIR provides:

"1.

A court shall be deemed to be seised:

(a)

at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent; …"

In Re I (A Child) [2009] UKSC 10 [2010] 1 AC 319 at [87], in the Supreme Court, Lord Clarke stated:

"As I see it, as stated above, the way article 16 works is that there is seisin on the date identified subject to a condition defeasant. That is not a case of apparent seisin maturing into actual seisin but there being actual seisin, which would take priority over any subsequent seisin, unless there was no service or lodgement."

I am wholly satisfied that in order to seise the Polish court definitively it was necessary to serve the process on the father. This is elementary, and accords with the expert evidence on Polish law in my papers. Plainly, the court can make protective orders ex parte prior to service being effected – this happens all the time and indeed such an order was made by the Family Court at Brighton on 4 August 2016. But at some point, service has to happen, and it simply did not happen in this case. Therefore, in the absence of service, the condition defeasant referred to by Lord Clarke operated and the Polish proceedings lost their priority in favour of the English proceedings.

Coincidentally, on 5 August 2016 the matter came back before the Family Court at Brighton on the application of the father for enforcement of the prohibited steps order which he asserted, with some considerable force, the mother had breached. On that occasion, the court expressed the view that the mother was entitled to take the children to Poland for the purposes of attending court and that accordingly she would not be in breach of the order provided that she returned the children to England and Wales by 5 pm on Wednesday, 10 August 2016, at the latest. The court lifted the stay on the English proceedings and directed that the matter return on 12 August 2016. On 12 August 2016, the matter came before Mr Justice Keehan. He was informed that the father had mounted an appeal against the order of 5 August 2016 which would likely be heard on 1 September 2016. On that basis, the matter was adjourned to 16 September 2016. On that latter day, the application of the father was adjourned generally with liberty to restore, he having commenced Hague Convention 1980 proceedings in Poland for the return of the children.

On 20 October 2016, the father commenced divorce proceedings in this jurisdiction. By an order made on 6 March 2017 those proceedings have been stayed until the appropriate conclusion of the divorce proceedings in Poland commenced by the mother.

That application by the father under the 1980 Convention was refused by Judge Rzeznik on 7 December 2016. She found a defence under Article 13b proved. That is not relevant for my purposes. But she also found that at the relevant time (30 June 2016) the children were not habitually resident in England. With the utmost respect to her, I simply cannot accept her reasoning and to my mind it is impossible to reconcile with her earlier, entirely correct (in my opinion), reasoning of 14 July 2016. Her dismissal of the centre of interest that was the family home in Brighton is, I have to say, with the greatest regret, unconvincing. She characterises that property as having been purchased for rental purposes, because the parties had a lodger from time to time and because on occasions, when they were not there, they allowed it to be let out through Airbnb. To use a property in this way does not mean that they were running a “B & B hostel”, as Judge Rzeznik put it. Equally, to dismiss the mother’s self-employment in the UK because some part of it was done with overseas clients by Skype is, again with great respect, just as unconvincing, and in any event disregards entirely the father’s work exclusively undertaken here. The judge seems to have formed the view that the parties had made an agreement on 12 June 2016 to relocate to Poland when in fact the evidence was completely contrary to that. The fact that the parties were looking at a property to buy in substitution for an existing property in Poland already owned by the mother is surely neither here nor there. It would be entirely normal for foreign residents in this country to maintain properties in their native countries, just as the father has done in relation to Hungary. Judge Rzeznik concluded her judgment by saying:

“When taking the children from Great Britain to Poland, [the mother] was executing her custody rights by taking the minors to their place of permanent residence. No breach of [the father’s] custody rights occurred, since his personal habit of travelling between both countries had already been established, and he has agreed that the family should reside in Poland in June 2016.”

I have to say, with the greatest possible respect, that this analysis is wrong from many different angles. To suggest that the children were permanently resident in Poland on 30 July 2016 is wholly untenable and at complete variance with the true state of affairs. The fact that the father travelled periodically to Poland has no relevance at all to the question whether his own rights of custody had been breached. I have already explained how it is simply untrue to suggest that the parties had agreed in June 2016 to relocate to Poland. Above all, this analysis ignores the fact that the mother had retained the children in Poland in breach of a court order made by the Family Court here in England. So even if the removal was not in breach of the father’s rights of custody the subsequent retention was certainly in breach of this court’s rights of custody.

I have, with great regret and much anxiousness, reached the conclusion that in this case Judge Rzeznik has strained the facts beyond their acceptable and normal meaning in order to reach a conclusion which justifies the Polish court exercising jurisdiction over these children in this case.

The father had sought an order for contact with the children within the Hague Convention proceedings but on 9 February 2017 Judge Rzeznik dismissed this application on the technical ground that the application was not in proper form and should have been made within the divorce proceedings.

The father appealed both decisions of Judge Rzeznik. This was an actual appeal so-called and came before the District Court in Lodz before a constitution of three judges. On 13 June 2017, the appeal was dismissed. The note of the judgment in my papers suggests that the focus was virtually entirely on the father’s contact application; there is nothing in the judgment explaining how it could rationally have been accepted that at the relevant time the children were habitually resident in Poland.

For completeness, I should mention that:

My conclusions are as follows:

The final question set for me by the order of Mr Justice Hayden is this: if this court has primary jurisdiction to determine welfare issues, should the court order the summary return of the children to this jurisdiction? Although the order of 5 August 2016 did not explicitly order the mother to return the children by 10 August 2016, there was a clear judicial expression that unless the mother did so she would be in breach of the prohibited steps order. This militates strongly in favour of making an effective order to bring the children back to the place which has exclusive jurisdiction over them. On the other hand, the children have now been in Poland for 15 months. This might suggest that in practical terms it would be better for the Polish court to deal with the matter and that I should make an order transferring the case to Poland under article 15. However, for the reasons set out above I am quite sure that were I to do so the father would not feel that he had any prospect of gaining a fair trial. There is also the important principle to be observed that children should be in the place from which they have been wrongfully taken.

I have therefore decided to make an order requiring the children to be returned to this jurisdiction by 15 December 2017. I am satisfied that this is in their best interests. I am satisfied that it is the only way of promoting their right to a normal relationship with each of their parents. On their return, the children will live in the family home and the parents will occupy it, and care for the children, on an alternating weekly basis in accordance with the agreed arrangements set out in the order of 18 July 2016 made by Her Honour Judge Waddicor. I emphasise that those arrangements were agreed between the parties. The allegations of abuse raised by the mother in the Polish proceedings have not been proved in this jurisdiction. The matters relied on by Judge Rzeznik in her judgment of 7 December 2016, for the purposes of proof of the defence under article 13b of the 1980 Convention, seem to me to be unspecified. She merely says: “at least since 2014, the children witnessed the use of violence against [the mother] by the father”. No further detail is supplied and as the judge makes clear case her finding is based on the testimony of the mother alone.

I am not prepared, on the basis of the evidence before me or of the findings made by Judge Rzeznik, to make any protective orders under Part IV of the Family Law Act 1996. However, the mother will have ample time before her return to this jurisdiction to instruct solicitors to make an application to the Family Court at Brighton, supported by full evidence, for protective orders to be in place upon her return.

My order will provide that following the return of the children the decisions about their long-term welfare will be made by the Family Court at Brighton. Following their arrival here there is no further need for the matter to be determined within the Family Court in London at High Court judge level.

My order is, in my respectful opinion, required to be recognised and enforced in Poland pursuant to the terms of chapter 3 of BIIR. Specifically, it is my opinion that this judgment should be recognised under article 21, and then declared enforceable under article 28. How it is enforced will be governed by the law of Poland pursuant to article 47(1). I should also add that inasmuch as the order of Judge Rzeznik on 7 December 2017 refused the father’s application under article 13b of the Hague Convention 1980 my order for the children’s return should be regarded as having been effected pursuant to article 11.8 of BIIR, enforceable by means of the process in chapter 4 (article 42). I shall attach to my order certificates in the terms of annex II and annex IV of BIIR.

I direct that this judgment shall (a) be made available to the Head of International Family Justice and (b) be translated into the Polish language at public expense and made available to the Polish courts.

That concludes this judgment.