F v M & Anor

N is 6 ½ years old, having been born on 4 October 2001. She is the daughter of F and M who are married. Both parents and N are Polish nationals. I am dealing with F’s application under the Hague Convention and under the inherent jurisdiction of the High Court for an order requiring the return of N to Poland.

Until 27 May 2006, N had always lived in Poland. On that day, M left Poland with N by bus to come to England where they have been living since. F had no knowledge of the plan to remove N and was not in agreement with it. M concedes that the removal was wrongful.

M opposes F’s application on two bases. She argues that F has acquiesced in the removal (Article 13(a)) and/or that more than one year had elapsed by the time F began his Hague proceedings and N is now settled in her new environment (Article 12).

The detail of the history in Poland is often very unclear from the documentation which is at times contradictory. I have set it out as best I can below. Oral evidence might have resolved quite a few of the uncertainties but one must be mindful of the summary nature of Hague proceedings in which live witnesses are by no means a regular feature. No direction as to oral evidence had been sought in advance of the hearing in front of me. At the hearing, neither parent invited me to hear oral evidence but I was invited by the guardian to do so. This invitation related principally to the evidence that the guardian could give on the issue of N’s settlement in England, including particularly her observations of contact which had been attempted unsuccessfully at her offices between N and F on the morning of the first day of the hearing. I already had a helpful report from the guardian about N’s present living circumstances and I requested that the guardian should also put her account of the contact in writing which she did. Neither party disputed what she said about it. As to N’s current circumstances, M’s evidence is in line with that of the guardian and F has no material on which to dispute their accounts. The argument in regard to settlement thus relates not to what the factual situation is but to whether that factual situation amounts to settlement for the purposes of the Hague Convention or not. In the circumstances, I did not consider that it was necessary for the guardian to give evidence in connection with the settlement issue. Mr Devereux for the guardian indicated that the guardian was neutral as to whether there should be oral evidence on the question of acquiescence. I decided that the limited oral evidence that could be heard in the 2 days allocated for the case would be unlikely to shed sufficient light to justify taking that course. I have been conscious, as one must always be in a Hague case, of the need to make a decision without undue delay, albeit that the speed of determination may perhaps be tempered to a degree in settlement cases given that the major objective of the Convention – to secure the swift return of children who have been wrongfully removed from or retained away from their country of habitual residence – can no longer be achieved. As it was, reading and legal argument took up the full 2 days of the hearing, without time even for this judgment to be prepared and delivered. Finding time for oral evidence to be heard would have meant the postponement of my determination which, in my view, would not have served N’s interests in that the improvement in understanding that it might have produced would have been insufficient to justify the delay inevitably involved.

M and F were married on 19 May 2001 when M was already pregnant with N. Their marriage was not entirely without incident and they appear to have separated at least once before their final separation but become reconciled.

On 5 December 2005, M came to England on her own to work, leaving N with F. M says that this was to earn money to furnish the flat which they had recently purchased with assistance from the paternal grandmother.

F thought that whilst M was away their communications lacked warmth and wondered if she had met someone else. She returned towards the end of January 2006. He says that almost immediately she arrived, she said she did not love him and threw her wedding ring on the floor. His case is that after 3 days she moved out and went to live in her brother’s flat, taking N too.

M’s case is that F had been having an affair before she left and continued to do so whilst she was away. Accordingly, upon her return, she told F she was not prepared to put up with this and that she intended to leave with N and move to England. She agrees that she moved with N to live with her brother but says that this followed F changing the locks so she could not get into the flat.

M’s case is that F brought her belongings and N’s to her and said he wanted nothing more to do with N and did not ask to see her until March 2006. This assertion that F was washing his hands of N does not sit easily with the letter F wrote on 1 February 2006 to the Director of Citizenship Matters and Migration Department seeking to ensure that N was not removed from Poland by recording that he held N’s passport and did not consent to another one being issued to her or to her being added to M’s passport. F’s later actions did not suggest disinterest in N either, for example agreeing to share her care with M and pursuing what we might call interim residence through the Polish courts. Nor is M’s assertion consistent with the picture of F’s relationship with N which was painted by the head of N’s nursery school in the report prepared in March 2006 to which I refer again later. Accordingly, I do not accept M’s evidence in relation to F’s attitude about N during this initial period.

F’s case is that after the separation, M was obstructive about contact. It is agreed that F saw N in mid February 2006. F says that N was supposed to stay with him for a week from 18 February 2006 but M removed her from nursery in the middle of that week and for 10 days, he did not know where she was staying. M says F had N for a Saturday night and returned her to him on Sunday.

It is common ground that at the beginning of March 2006 N went to stay with F for a period. The parents do not agree entirely as to the circumstances.

F says that he had a conversation with M who told him that she wanted to take N to England. He said he would not consent. She then said she would go to court and obtain permission. He said he would comply with any court order but would not give her N’s passport otherwise. At some point (he does not give a clear indication of when), M told him he could look after N.

M’s case is that F contacted her to ask her to remove the address of their flat from her identity card but said nothing at that time about contact with N. The amendment of the identity card would apparently have had the effect of giving F sole ownership of the property. She says that he said that if she did this, he would give her N’s passport which she wanted so that she could take N to England but they fell out over the sequence in which the removal of the address from the identity card and the handing over of the passport would take place. She says that a couple of days later, he telephoned and said he wanted to see N. In her first affidavit, she says that he came over to her brother’s flat where she was living and they agreed that he would share N’s care whilst she, M, was looking for a job and accommodation that were more suitable. The impression given in the affidavit is that the new job/accommodation would be in Poland rather than in England but I do not think that this is actually what M was after at the time. It seems clear from the periods of time she spent in England from Christmas 2005 onwards, her wish to obtain permission from F or the court for a move to England, her wish to obtain N’s passport, and ultimately her illicit removal of N to England in May 2006, that throughout the first half of 2006 she was intent upon taking up residence and employment in this country on a long term basis as quickly as she could.

It appears to be common ground that a 2 week period during which F would care for N was envisaged by both parents. According to M, the agreement was that each parent would have N for 2 weeks at a time, with F having her for the first 2 weeks. Although other documentation gives the impression that F viewed the arrangement as N coming to live with him, his affidavit for these proceedings says that when M handed N over, which was on 2 March 2006 at a tram stop with a carrier bag of belongings, M said she would collect her in 2 weeks time. F’s case is that M flew to Luton later that day.

F says he found N’s behaviour difficult at home for a few days after 2 March 2006. He took her to a paediatrician who referred her to a psychologist although it seems that no consultation with the psychologist actually took place because N calmed down. The report from N’s nursery school dated 17 March 2006 is complimentary about N and says that she is an emotionally balanced child. No disturbance had been seen at nursery. Since she was enrolled, it had mainly been F who dropped her off and collected her whereas M is said in the report to have “occasionally picked up her daughter from nursery school”. The head teacher says that the nursery staff had observed “a strong emotional bond between father and daughter and that the father takes great care of the child’s appearance and development.”

F’s account to the Polish guardian who was later appointed to investigate N’s circumstances was that after a week, M returned and wanted to take N back but he “forcefully protested”. The Krakow police station report that on 17 March 2006, at 13.27, M reported that F had been “hindering contact with their child and did not want to let her into the flat where she is officially registered”. M was at the property. The police seem to have attended. Nobody answered the door and there were no sounds from inside although M said that before the police arrived, she had heard N’s voice. M says she was advised by the police that they could do nothing as F had parental rights as well as her.

F made an application to the Polish court, dated 18 March 2006 and stamped 21 March 2006, for “the granting and limiting of parental authority” in which he seeks “to be entrusted with the exercising of parental authority over the minor….and the parental authority of [M]…to be restricted by way of the exercising of this authority being subjected to constant supervision by a court appointed guardian”. In his affidavit, F describes this as an application for sole custody of N. On 27 March 2006, M issued her Polish divorce petition, dated 24 March 2006, which included an application for her to be “entrusted with the exercising of parental authority over ….N….with …F’s…parental authority being limited at the same time”. She also applied for parental responsibility for the duration of the proceedings with her address to be established as N’s place of residence.

A guardian appointed by the Polish court conducted a “background investigation concerning the divorce proceedings”, producing a report on 24 April 2006 which concluded that “it would seem justified for the minor to continue to live with her father, who provides her with appropriate care, as well as the minor’s grandmother, who is not in employment and looks after the minor during the respondent’s absence”. The impression of the guardian was that F provided a stable situation for N and M had gone off to England and the “unknown”. The report records that the investigation took place at F’s home and proceeded on the basis of an interview with F. M does not seem to have been interviewed, possibly because she was in England.

Whereas N herself undoubtedly remained in Poland continuously until 27 May 2006, it is difficult to be sure from the papers whether M was based in England during the first half of 2006 or in Poland. M’s case now is that she simply took 2 months unpaid leave from her Polish job so that she could work over Christmas 2005 in England. She gives the impression in her first affidavit that after her return to Poland at the end of January 2006, she continued to live and work in Poland although she wanted to move to England with N and this is what she also says explicitly in her second affidavit. In her interview with the police on 26 May 2006, however, the impression she gave was that she travelled to and fro between England and Poland, returning finally on 22 May 2006. She is recorded as saying:

F filed a statement of defence, presumably in response to M’s divorce petition, stamped 28 April 2006. As well as seeking a divorce on the basis of M’s fault, it makes applications in relation to N which are the mirror of M’s applications in her divorce petition.

There is a degree of confusion in the Polish court papers, but it seems that on or about 17 May 2006, M’s lawyer chased the Polish court for progress of the divorce petition, pointing out that it included “an application for an interim decision which has also not been adjudicated”. This is the inference I have drawn from the letter at D14 in the bundle, albeit that the letter appears to be punctuated with errors. It is dated 16 March 2006 which must be wrong; the date stamp from the court is 17 May 2006 which presumably indicates when it was received. I take it that the reference to the “statement of claim” submitted on 27 April 2006 is to the divorce petition stamped 27 March 2006.

On 23 May 2006, the Polish judge made an interim decision on the papers “to grant F exercise of parental authority over N ….during the legal proceedings” and “to dismiss M’s claim in its entirety”. The decision records that the judge analysed the guardian’s inquiry, the nursery head’s opinion and the information included in both parents’ written statements.

In a letter dated 24 May 2006, the Polish court wrote to M’s solicitor saying “The Judge issued an interim decision on 23-05-2006, with which you shall be served. At the same time I would inform you that the evidence hearing has been scheduled for 20-10-2006.”

That same day, 24 May 2006, M collected N, who was then in F’s day to day care, from the nursery without F’s agreement and went to live with her brother. F contacted the police later that day and reported that this had happened at 8.30 a.m. His lawyer filed a Statement of Defence with the Polish court asking for an injunction “in light of the fact that [M] intends to take the child abroad as asserted by [F]”. The pleading records that the police had decided it would not be appropriate for them to help take back the child or assist with mediation. Although F’s lawyer seems to have been aware at that point of some procedural decision on 23 May which she mentions in the pleading, she does not seem to know of the order made that day in relation to N because the pleading also seeks adjudication of the issue of parental authority during the proceedings.

On 26 May 2006, M attended at the police station in Krakow and was interviewed. She said:

I find M’s account of the circumstances surrounding N’s removal from nursery and from Poland incredible. She says that she had no contact with N throughout April 2006 but she continued to try to see her. She says F told her that she would have to pay a sum of money equivalent to about £200 every time she saw N or perhaps could earn the right to see her by sleeping with him and/or his friends. I do not know to what extent M was able to see N but what I do find improbable is that a father who made such a favourable impression on the Polish guardian (albeit that this was a one sided investigation) and on the nursery school would seriously seek to impose terms of this kind on contact between M and N.

On M’s case, N was not attending nursery for a period but some time in the first half of May 2006, she found out that N was back at nursery. She says that she thought F had concluded that after two months she would have given up looking for her. She decided she would take N from nursery and go to England. The problem was that she did not have N’s passport. She asked her lawyer if she could make an application to court for the passport and the lawyer said she did not need the passport to go to England, only a birth certificate for N. She asserts in her first affidavit for these proceedings that she did not know she was doing anything wrong by taking N to England. She there sets out that after she collected N from the nursery, she and N stayed with her brother for about a week and then came by bus to Luton and says:

One could quite readily accept that M might have mistaken the dates of her arrival in Luton when describing her actions in her first affidavit because dates can easily be muddled. However she also asserts that she did not know of the “hearing” on 23 May before leaving Poland. This is more difficult to accept. She knew of the hearing scheduled for 20 October 2006 on 26 May 2006 when she saw the police because it was mentioned. I accept that it is possible that the police told her of it when interviewing her but the other obvious possibility is that she was told of the date by her lawyers following their receipt of the letter of 24 May from the court. I note that her lawyers say in their application of 14 August 2007 to the Polish court for a variation of the order of 23 May 2006 that the letter of 24 May 2006 was “served to the attorney on 31^st May 2006” but that assertion is completely inconsistent with the next paragraph in that application which reads:

Even if I am wrong and M was not told of the existence of the 23 May decision until after she had left Poland, she was in any event under no illusions about the general expectation that she remain in Poland with N because she assured the police that she would remain until the divorce hearing on 20 October 2006. It is plain from that as well as from the terms of her second affidavit and from her ultimate acceptance that the removal of N from Poland was wrongful that she was aware that what she was doing was not permissible.

F did not know where N was and, in particular, was unaware that N and M had left Poland on 27 May 2006 for England. He contacted the police on 4 June 2006 and told them that M had taken N on 24 May 2006 and he had not had contact with her since. He asked for checks to be done as he feared that M may have taken N abroad. The police record that an “official report for the Minors Section was drawn up”.

It is F’s case that on 5 June 2006, M telephoned the paternal grandmother and told her she was in England with N. She would not provide information as to where she was living and said they would not find N and not to look for her. F says M also tried to deny that N was his daughter. She also telephoned and spoke to him once. Each time she withheld her number.

By a document dated 6 June 2006 and stamped by the court on 9 June 2006, M applied to the Polish court to withdraw her statement of claim of 27 March 2006. This was granted by the Polish court on 28 June 2006. That order was successfully appealed by F on the basis that there was a cross prayer by him for divorce which had not been discontinued.

On 20 June 2006, F notified the District Public Prosecutor’s Office in Krakow that M had committed an offence of abduction the light of the order of 23 May 2006 and her removal of the child to England. This came to nothing, ultimately. The District Public Prosecutor’s Office notified F on 15 November 2006 that it had decided to discontinue the investigation because an offence was only committed if a parent has been deprived of their parental authority or their parental rights have been limited or suspended.

F’s case is that he spoke to a father’s rights organisation and, approximately one month after N’s removal from Poland, contacted a missing persons organisation with which he has spoken several times since. Approximately 4 months after the removal, so at about the end of September 2006, F says he contacted the British Consulate in Krakow for assistance. They advised that he get in touch with the Polish Consulate in London. He did. They advised that the British courts might be able to assist but that he would have to seek advice from a Polish lawyer. He says that on each occasion he was told that because M had unrestricted powers, no one was able to assist him. This is, of course, consistent with the position taken by the District Public Prosecutor’s Office in relation to whether M had committed a criminal offence. It is nevertheless surprising and disappointing, although by no means impossible, if neither the British nor the Polish Consulates advised F on the existence of the Hague Convention which would, undoubtedly, have assisted him.

On 23 January 2007, there was a hearing in the divorce proceedings in Krakow. Both parties were seeking a divorce on the basis of the fault of the other and both sought parental authority over N. M did not appear although she had been properly summoned; her lawyer appears to have been there but said that he had not been served with F’s statement of claim which was supplied to him. F was there with his lawyer. 7 witnesses were heard but no substantive decision was made. The matter was adjourned to 13 April 2007 for more witnesses to be heard. It is recorded that at the end of the hearing, F’s lawyer “declared that he was considering lodging an application to take back the child in accordance with the Hague Convention procedures.” F’s recollection is that it was following this hearing in January 2007 that his lawyer first mentioned the Hague Convention to him, though he cannot remember precisely when. As he was present at the hearing, he no doubt would have heard her mention this then, even if she had not discussed it with him before. He says she had no idea how to make a Hague application and it took her several months to compile the necessary paperwork. He says he had to carry out his own research on the internet into the correct procedure to be followed. F’s lawyer died in August 2007 so it is not possible to obtain any evidence from her to confirm or gainsay his account. It may seem unlikely to those who practise in the field of child abduction that a lawyer could be as ignorant of the existence of the Convention and the method of making a Hague application as F suggests his Polish lawyer was, but the reality is, I suspect, that there are many children lawyers who are not well versed on this subject. Thorpe LJ commented in Cannon v Cannon [2005] 1 FLR 169 at para 49:

Following the hearing of 23 January 2007, the Polish court held further hearings at intervals through the rest of 2007 and during 2008 and heard further witnesses. I will pick out certain matters but will not attempt to record all the twists and turns. M has never appeared in person although she has mostly been represented. Further witnesses have been heard including, on 28 May 2008, M’s uncle and his daughter who had visited M on holiday in this country and could give evidence about N’s circumstances here.

The Polish Court considered the proceedings on 7 August 2007, it seems with a view to hearing the evidence of a witness who, in the event, did not appear for justifiable reasons. The record of the decision that day says: “The plaintiff’s [M’s] attorney and the respondent [F] were informed of the date of the Family Diagnostic and Consulting Centre examination. The parties were summoned to appear in person at the examination together with the minor on sanction of unfavourable consequences with respect to the proceedings.” Arrangements were also made for the absent witness to be resummoned. There is no mention in the record of the decision, and perhaps one would not expect it, of F’s lawyer having said anything about the Hague Convention during the hearing but M’s Polish lawyer said, in the written application for variation of the 23 May 2006 order (the application says 23 May 2007 but that must be a mistake) which he made on 14 August 2007, that “as indicated by the declaration of the respondent’s [F’s] attorney made at the hearing on 7th August 2007….the respondent has now undertaken actions aiming at initiating procedures provided for by the so-called Hague Convention with the objective of compulsorily removing the child from the mother.”. As we know, F’s originating summons under the Hague Convention was actually issued on 18 March 2008 and I will return to that later.

M’s application of 14 August 2007 was for a variation of the order of 23 May 2006 so as to entrust parental responsibility to her for the duration of the proceedings. What happened to it is uncertain. There is an order of the Polish court dated 20 August 2007 which says simply “I order the return of the application of [M] to change the interim decision.” This order is mentioned in the decision of the Polish appeal court of 28 April 2008 in response to M’s complaint to them about the tardiness of the Polish proceedings but not enough is said to make the process entirely clear to me. The appeal court says that the judge “ordered the serving of a copy of the order to the M’s attorney on the same day” and that the order was erroneously carried out as the copy of the order was served to F’s attorney; they found M to have a justifiable complaint as regards this failure to serve her with the order. F’s counsel submits to me that the “return” ordered was perhaps the fixing of a date for the application but nothing then seems to have happened to progress the application which, even taking into account that the return order was sent to the wrong side initially, is puzzling. The enquiries that were kindly made of the Polish court by Thorpe LJ’s lawyer at my instigation during the hearing produced the response that M did apply for a change to the temporary order of 23 May 2006 but “because it did not comply with the formal requirements and the application was not amended in time, it could not be processed further”. The difficulty about this information is that it seems it was obtained by Judge Kuziak (the Polish judge who replied to the request for information) by enquiries of F’s barrister rather than from the more neutral source of the Polish court files. It can be very helpful to have direct contact with the foreign court in cases like this and I hoped that it might be in this case but, although I am grateful to Judge Kuziak for his considerable efforts, it became clear following his reply to the English court’s questions that the Polish proceedings were too complex reasonably to expect a judge who was not in charge of them to be able to provide information which would be sufficiently reliable and detailed to be of real assistance. I did not therefore pursue this route further and puzzles about the Polish proceedings remain, amongst them what became of M’s interim application of 14 August 2007.

On 16 October 2007, F and his then lawyer appeared before the Polish court but M and her lawyer, although recorded as properly summoned, did not. M’s lawyer had filed some documentation which is not, as far as I am aware, in the bundles for this court. F’s lawyer is described in the court record as “liquidator of the lawyer’s office of B. Czubak”. Miss Czubak had been F’s lawyer but had by now died. The court heard from a witness and received information from the police. The court is recorded as having decided that “In the light of the date of the Family Diagnostic and Consulting Centre examination on 17 October 2007 to postpone the hearing to the date on the letter.”

On 17 October 2007, the examination at the Diagnostic and Consulting Centre took place. It was a one-sided investigation again. F attended. The report of the Centre records that M “did not turn up with [N] at the set time of the examination and did not provide any justification for her failure to appear” as the court documentation makes clear she had been ordered to do. The report records that, during the interview,

M’s response to the Centre’s report is contained in a Preparatory Document dated 9 December 2007. It says:

The latest hearing in the Polish proceedings was that on 28 May 2008 when M’s relatives gave evidence.

It is clear that by now, the Polish proceedings to determine the arrangements for N are very far advanced, a considerable amount of evidence having been heard and an investigation carried out by the Consulting Centre, albeit that they have been hampered by M’s failure to attend with N for examination. Judge Kuziak was without information as to the stage that the divorce proceedings had reached when he replied to the English court’s questions but he indicated that even if he had known, it would have been very difficult for him to predict when the proceedings will finish. Polish law does not limit evidence so the parties can seek to call evidence right up to the last moment. He says that generally the mother’s presence in Poland should speed up the divorce proceedings providing she takes an active part in them. Also, he says, the presence of the child in Poland would enable the court to make a “complex assessment” of the issues over parental responsibility and who is best equipped to raise N. I invited the parties to make any additional written submissions that they wished in response to Judge Kuziak’s letter. Mr Harrison for F indicates in his further submissions that F’s Polish lawyer has instructed his English lawyers that the only witnesses that remain to give evidence in Poland are the parties themselves so there should not be a significant delay in concluding the proceedings there. The Polish lawyer says, entirely credibly, that in the light of M’s complaint about the delay in the proceedings thus far, the case has now been taken over by the Presiding Judge in Krakow with the aim of ensuring that the proceedings are now dealt with as quickly as possible. He also says that although M’s original application for variation of the interim order of 23 May 2006 is no longer extant, she would be free to make another at any time. Judge Kuziak indicates in his letter that according to Article 737 of the Polish Civil Procedure Code, such an application should be dealt with without delay, no later than 7 days from the date of the court receiving a properly constituted application.

M has been living in England with N since their bus arrived following its departure from Poland on 27 May 2006. As far as I am aware, neither of them has returned to Poland since then.

F’s originating summons in these Hague proceedings was issued on 18 March 2008. I do not know when his case was first put before the Central Authority in Poland. The matter having made its way to the English Central Authority, his present English solicitors were instructed by a letter of 11 March 2008. They acted immediately, having obtained public funding on 12 March 2008. Coleridge J made a location order on 18 March 2008. On 22 March 2008, M was served with the English proceedings. Both parents attended before HHJ Horowitz QC on 27 March 2008 and thereafter the normal sort of preparations began for this contested hearing.

On 25 April 2008, there was an order that F should have regular telephone contact with N. N has spoken to her F by telephone a handful of times. F told the guardian that on a few occasions this had been fine but often it did not go well. N told the guardian that she did not like speaking to F on the telephone. She said she did not like the conversations as he asked her lots of questions about her mother and her mother’s boyfriend and work. She said he did not ask about her but told her that her mother’s time was up and she had to return home to him. N told the guardian that she was scared of F. She said she was locked away from her mother, presumably a reference (either from her own memory or from what her mother told her) to the occasion included in the Polish police report when M said that she was not allowed in to F’s home but had initially heard N inside. The guardian was present during a telephone call with F and reports that N was anxious before the call came and said she did not want to speak to F but when the call came, M encouraged her to speak to him and she took the telephone and launched into a conversation. The guardian says that N was speaking in a strident, almost hectoring, tone. The guardian heard F reply in a similar vein. There were no pauses, laughter or lightness in their voices. N told the guardian later that she had spoken to F about the time he kept her from M and he had denied this. She said he had also asked lots of questions about M’s boyfriend.

It is common ground that the contact in the guardian’s office on 5 June 2008, on the morning when the court hearing was due to start at noon, was not a success. The circumstances were not auspicious. The interpreter was very late and the guardian was unable to speak to F to prepare the way before the contact started. N had been playing happily for 45 minutes. When F came in, she refused to get up to greet him. She did not reply when he asked why she would not speak to him. He turned to the guardian and said there was no point in continuing as M had influenced N against him. The guardian suggested further efforts be made to engage N but N did not respond and F again began to make negative comments about M. Things did not improve. N asked to return to her M and F agreed the contact should be terminated. Afterwards, N was distressed and said she did not want to return to Poland, whether with M or not. She said that if she returned to Poland, F would discover her whereabouts and she feared he would take her and not let her see her mother. She said that during a recent telephone conversation she heard him make a comment to his mother that he would hire someone to kill M (M seems to be referring to this in her second affidavit where she describes an occasion when N spoke to her paternal grandmother by telephone and the line remained open at the end of the call, allowing her to hear F say he was going to pay someone to “clean me up”). F told the guardian that N had reacted to contact with him in a similar way during a previous period when she was living with M and he had not had contact.

It is clear from this snapshot obtained by the guardian that N’s relationship with her F is presently troubled. There are a number of reasons why this might be so but, whatever the cause, it is obviously not in her interests for this situation to continue and it will need careful attention if it is to be improved.

It is also clear that N does not want to go back to Poland. I have recorded her comments about this to the guardian in the context of the contact that the guardian observed. She also expressed this view to the guardian when the guardian met her at home on 12 May 2008. N’s objections to being returned are not advanced as a defence to F’s Hague application but they are not irrelevant to the exercise of my discretion.

M’s case is that F had a number of ways to get in contact with her in England. She says that on arrival back here, she went back to the same address that she had stayed at when she worked in England over Christmas 2005. This was an address known to F although she does not assert that she actually told him that she had returned there. Indeed, in the face of F’s assertion that she made telephone calls to him and his mother at the beginning of June 2006, telling them not to try to find her and N, she says she did not telephone F at all after coming to England. She says F had her mobile telephone number and could have contacted her that way. She lived openly in England under her real name. She registered with the Home Office and obtained a residence document. There is also a suggestion that F could have got M’s address through the Polish proceedings. Her Polish solicitors say that as far as they are aware F never asked them or the court for M’s address and assert that a report from N’s school was on the court file in Poland from October 2007 so M was not hiding where she was. M herself says in her affidavit that she believes that the court in Poland had her English address. However, M deals in her second affidavit with an order which was made by Sir Christopher Sumner on 10 April 2008 to the effect that her Polish lawyers should disclose her address in England to the Polish courts with a proviso that the address was revealed to the court only and not to the applicant. She says that her Polish lawyers

F says that he was indeed aware of M’s previous address in Luton and gave it to the police after N went missing but heard nothing as a result. It is the address his lawyer gave on a court pleading in Poland on 20 June 2006. He had no landline number for M here and he denies that he had her mobile number. He says that when she rang in June 2006, she withheld her number. He tried to trace her through work colleagues of hers but they would not help. He thought about coming to England to try to find N but was not certain where she was living, did not speak any English and did not know anyone in England who might have helped him. Not only does he think (correctly it seems) that the Polish court is ignorant of M’s English address, M’s lawyer told the court there that he did not have it either and that she only contacted him sporadically by telephone.

I take into account that M was quickly found once the location order was made in these proceedings. Doing the best I can with the information available, I have concluded that having wrongfully removed N secretly from Poland in the way she did, M is unlikely to have arranged things here in such a way as to enable F easily to trace her. I accept what he says about her telephone calls in June 2006 warning him not to try to find them. It is easy to suggest that F should have come over here to look for N but that is to ignore the very real difficulties that would pose for a foreigner with no English and also to ignore that F was engaged in a process with the Polish courts and the Polish police with a view to recovering care of N.

M’s view is that N is now very well settled in England. They moved in December 2007 from a rented one bedroom flat to a rented two bedroom flat. N has attended the same school since September 2006. She speaks very good English, has lots of friends and is very happy. M works 35 hours a week as a “domestic” in a hospital. Her Polish aunt has come over for prolonged visits and looks after N if child care is needed. M has a boyfriend whom she has known for about a year. They do not live together and do not presently plan to do so but he sees N regularly and helps with child care too. M says that N has insisted on calling him “daddy”.

The guardian’s enquiries confirmed M’s account of the living arrangements here. She says M hopes in due course to buy her own house and is intending to apply for a nursing assistant post. The guardian says M’s boyfriend and a female friend of hers care for N at weekends whilst she is at work and M’s aunt from Poland cares for her in the school holidays. The guardian went to N’s school with M and observed M to know various other parents. N spoke to the guardian with enthusiasm about her life and showed her things about her school and home.

N’s teacher told the guardian that she is one of the best children academically in the class. She is said to be making superb progress in every way. She is a happy child. She settled in very quickly on arrival and she is popular with many social invitations. Her teacher says she is a lovely child, a joy to teach.

The guardian found N to be a “very chatty, confident child who exudes cheerfulness and energy”. Her conclusion is that N “has settled in very well, not only into her school but also into the community” and she says:

So far as is material to this case, Article 13 of the Hague Convention provides:

The leading authority on acquiescence is Re H (Abduction: Acquiescence) [1998] AC 72. The burden of proving acquiescence is on the abducting parent. The court is to look at the subjective state of mind of the wronged parent. Has he in fact consented to the continued presence of the child in the jurisdiction to which she has been abducted? This is “a pure question of fact to be determined by the trial judge on the, perhaps limited, material before him.” Subjective intention can be inferred from the outward and visible acts of the wronged parent. Judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or to reach an agreed voluntary return of the child. They do not normally connote an intention to accept the status quo if the attempts fail. Although concentrating on acquiescence where the wronged parent really has consented to the child remaining away, Lord Browne Wilkinson also considered that there can be exceptional cases where the wronged parent, knowing of his rights, has so conducted himself as to lead the abducting parent to believe that he is not going to insist on the summary return of the child and cannot be allowed to go back on what he has done even if in fact he intended all along to claim the summary return of the child.

It is argued by M and the guardian that F has acquiesced in this case.

Mr Devereux for the guardian submits that the crucial period is from January 2007, because the evidence establishes that F was aware of the Hague Convention from that point and, he submits, knew where N’s school was. He submits that what F must have acquiesced in is that there was not going to be a summary return of N and that it is not necessary for F to have been in agreement with N remaining here for good.

On behalf of M, Miss Hall draws attention to the fact that there was an indication in January 2007 that a Hague application may be made and again in August 2007 and nothing materialised. She submits that it is important that F told the Consulting Centre in October 2007 that he did not want to snatch N from M by force, just to be sure she was not being harmed and to settle contact arrangements with her, being prepared to agree an arrangement in which he would travel to visit her alternating with M bringing N to Poland. She says that M reasonably assumed by the beginning of 2008 that F was not going to seek N’s summary return to Poland but was content to await the outcome of the divorce proceedings. She submits that no steps were taken prior to March 2008 to secure N’s return to Poland and that the only documented evidence of steps taken outside the Polish court proceedings is F’s attempt to have M arrested and charged with abduction. She argues that F did not pursue N’s return to Poland because he did not want to remove her forcibly from M or alternatively, if that was not so, M could have reasonably assumed it was his position. She asserts that it is relevant in this context that M has been making the running in the Polish proceedings recently and implies that F has disengaged. That is difficult to accept. Major obstacles to the progress of the Polish proceedings must have been M’s failure to attend at the Consulting Centre with N for examination and her request to call her relatives as witnesses of her circumstances in England which could not be arranged until the end of May 2008. M complains to the Polish court that F had N’s passport so they could not attend but I am not aware she took any steps to request it for the purpose of a return to Poland and I very much doubt she would have been prepared to return even if she had it because she would have feared she and N would then have been required to remain. It is also noteworthy, when considering M’s own engagement with the Polish courts, that she has not renewed her application for interim care of N to be granted to her although the evidence is that she could have done and it would be likely to have been heard quickly. It seems to me very likely that it has suited her better not to provoke the issue with the Polish court and F in this way but to enjoy the benefit that might derive to her case from the time it has been taking to resolve things in Poland whilst she remains in England.

Mr Harrison for F submits that he has not acquiesced. He has neither actually consented to N remaining here nor given the impression that he does. I accept this. I do not find it established that F has acquiesced within the meaning of Article 13, whether in the normal sense of acquiescence or in the exceptional sense contemplated by Lord Browne Wilkinson. For Article 13, the wronged parent must have “acquiesced in the removal or retention” [my italics]. Lord Browne Wilkinson’s question is first stated simply as, “Has he in fact consented to the continued presence of the children in the jurisdiction to which they have been abducted?” The question is not, “Has he, whilst intent upon return of the child in the end, consented to this not taking place summarily?” as Mr Devereux’s submission implies although Lord Browne Wilkinson undoubtedly does speak about the wronged parent’s attitude to “summary return” as he develops the point and Mr Harrison conceded in argument that acquiescence can be established in some circumstances where a parent has a long term objective of having the child returned to its country of origin but consents to some time being spent here first. In the event, it is not necessary for me to determine these interesting issues. In this case, in my judgment, F did not consent to the continued presence of N in England, nor did he act in such a way as to lead M to think that he did. He has been perfectly plain throughout that he is pursuing care of N and seeks to have her returned to Poland. M can have been in no doubt about this whatsoever. His focus has been on Polish proceedings, both in the courts and with the Polish authorities. On the whole, I prefer his account of events to M’s and I have no reason to doubt that he did make the enquiries of consulates and other bodies that he says he did. He has had an interim order in his favour in Poland since May 2006 and has engaged properly with the Polish courts whereas M has not made herself available for the proceedings there. It is entirely understandable that he did not come to this country himself to look for N and I apprehend that, had he done so, M’s submissions may have included adverse comment to the effect that he had pursued her, or some such. I do not consider that the delay in F issuing Hague proceedings indicates acquiescence or that he thereby misled M in any way about his position. Nothing has changed recently with regard to the Polish proceedings which might reasonably have provoked F to move from a position of accepting that N was to remain in England until the Polish proceedings were sorted out to a requirement that she be summarily returned and thus to issue Hague proceedings which he had known how to activate for months but been content not to utilise. It seems to me much more likely that he has never been content for N to remain here but, for whatever reason, he has not been well served until recently by those who have advised him respect of the ways in which her return may be secured. I do not consider that what he said to the Consulting Centre was indicative of his being content for her to remain here. It seems to me to go no further than an indication that he would be prepared to negotiate with M to achieve proper arrangements for N. Those negotiations never even got off the ground.

Article 12, so far as material, provides:

A period of one year had undoubtedly elapsed from the date of the wrongful removal by the time Hague proceedings were commenced here. An order for N’s return to Poland, albeit that it would not necessarily have to be an immediate return, would nevertheless be required unless it is demonstrated that she is now settled in her new environment.

In determining whether N is “now settled”, it is established that it is the situation when the proceedings were commenced that is relevant. In this particular case, given that there has not been undue delay between commencement and hearing and given that there have been no particular changes in the interim in N’s circumstances, nothing turns on this in any event.

Sophisticated arguments of considerable length were addressed to me on the issue of settlement. Mr Harrison in his written submission acknowledges that the guardian had concluded that N was now settled here but submitted that “on the facts of this case her overall conclusion is far too simplistic when one considers the meaning of the concept of “settlement” as a matter of Convention law”. Plainly one must have proper regard to the authorities as they have interpreted Article 12 but I would resist the development of an unduly technical approach to the question of settlement, or indeed acquiescence. The Hague Convention is designed to establish procedures to ensure the prompt return of children to their State of habitual residence and our courts have geared themselves to providing a speedy resolution of Hague disputes. Whilst I appreciate that it is no longer possible in settlement cases to return a child almost as soon as he or she has arrived here wrongfully, prompt resolution of the child’s future is still required. The more complexity and sophistication that attaches to the Articles of the Convention, the longer it takes courts to determine cases and the more appeals there are likely to be. The constant stream of reported authorities on the Convention, including regular decisions of the House of Lords, speaks for itself. I have endeavoured therefore to take as simple a view of the concept of settlement as is permitted by the existing authorities by which I am bound.

It is to Cannon v Cannon [2004] EWCA Civ 1330 (reported at [2005] 1 FLR 169) in the Court of Appeal that reference must first be made on the question of settlement although, in my view, Cannon cannot be read in isolation from the more recent House of Lords authority of Re M (Abduction: Zimbabwe) [2007] UKHL 55, [2008] 1 FLR 251 albeit that Re M dealt not with the question of whether a child is settled but with the question of what happens if settlement is established.

Cannon makes clear that each case must be considered on its own facts when it comes to considering whether the child is settled. Thorpe LJ says in paragraph 53:

Thorpe LJ draws a parallel between the assertion that a child has become settled in a new environment and our case-law regarding the acquisition of habitual residence. He cites the decision in Puttick v AG and Another [1980] Fam 1 to the effect that a fugitive from foreign justice will not acquire habitual residence here simply by relying on a time during which he has outwitted authority. This must be seen in the light of the decision of the House of Lords in Mark v Mark [2005] UKHL 42, [2006] 1 AC 98 some months later which made clear that habitual residence can in some circumstances (in that case for the purpose of founding jurisdiction in relation to a divorce petition) be established where the residence in question is not lawful although the legality of the residence might possibly be relevant in answering the factual question of whether the residence was habitual. Baroness Hale contrasts the situation of someone who was on the run after a deportation order or removal directions who might find it hard to establish habitual residence with that of a person who remains here living an ordinary life despite having no permission to be here.

Thorpe LJ remarks in Cannon upon the fact that the fugitive from justice is always alert for any sign that the pursuers are closing in and in a state of mental and physical readiness to move on before arrest. The proper interpretation of settlement, in his view, is that it has two elements, the physical and the emotional. A very young child takes its emotional and psychological state in large measure from its carer; an older child will be consciously or unconsciously enmeshed in the carer’s web of deceit and subterfuge. Thorpe LJ said:

The fact of the matter is that M’s whereabouts with N remained unknown to F for a considerable period of time. She indicated clearly to him within a short time after leaving Poland that she did not want to be found. She certainly did not volunteer where she was but she was discoverable quite easily when these proceedings were begun. I do not want to be thought to be attempting to place the steps that M took in bringing about this state of affairs on a scale of activity ranging from active concealment including, for example, changing identity and remaining on the run, to simply not bothering to tell the other parent the new address. Still less do I wish to fall into the trap of being influenced not by the impact that the conduct of abducting parent has had on the issue of settlement but by considerations of comparative moral blameworthiness of M and F. I do take into account that M has been aware throughout that proceedings have been on foot in Poland that may lead to N having to be returned to Poland and, because her own lawyer told her, was aware well before these English proceedings were issued of the possibility of Hague proceedings. This will have had an impact on M and on the climate in N’s home. M’s own evidence discloses that N has been aware of the possibility they may have to return to Poland and reluctant for this to happen. That is a factor which will have made it more difficult for M and for N to settle here. On the other hand, this is not a case in which the family has been constantly on the move evading detection. It is clear from all the evidence that N feels she belongs at home and at school here and is doing well. The comment of Baroness Hale at paragraph 52 in Re M comes to mind, albeit that it was made in the context of a consideration of what is a slightly later stage in proceedings when the court decides how its discretion should be exercised once settlement has been found. She remarked on the considerable time that had elapsed before the father in that case commenced proceedings and said:

It is unusual for a summary return to be appropriate in a settlement case as Baroness Hale commented in paragraph 31 of Re M. I am told that if I order return, this would the first time it had happened in this country. It is, however, clear that a settled child can be returned to their country of habitual residence. As to how the discretion whether to return a child should be exercised, Baroness Hale said (paragraph 43):

This case is unusual in that the Polish court has been seised of N’s case since before M left Poland with her and has got a very long way into its determination of what arrangements would be in her best interests, including commissioning an investigation by the Consulting Centre which has been partially carried out, and hearing numerous witnesses (counsel eventually agreed the number was 14). It is obviously imperative that N’s future should be determined as quickly as possible and with as much relevant information as possible. How things are for N now in this country is by no means the only issue. F’s ability to care for her and his circumstances are also important and are firmly centred on Poland. Also material is the history of the relationship between N and her parents whilst N was still in Poland. The Polish court is much better placed to determine many of these aspects of the case than is the English court. All parties speak Polish and no interpreters would be required there whereas they are here. The work is obviously considerably more than half done. In contrast, the English court has not even begun on a full investigation of N’s welfare. The guardian has made helpful observations but they have been carried out in the limited context of a Hague case and she has obviously not investigated F’s situation or considered the impact of the history. For this court to receive expert assistance about the Polish side of N’s life, including F’s circumstances in Poland, it would have to prevail upon the guardian to travel to Poland (with inevitable attendant language difficulties) or request assistance from international social services or Polish social services. F would need to participate through an interpreter. There would no doubt be significant delay in determining the issues. The presence of M and N in Poland would enable the Polish court to reach fully informed conclusions and I see no reason to suppose that it need now take an inordinately long time before this can be done. Without the presence of N and M for sufficient time to enable evidence to be taken and investigations completed, the Polish process will be impeded.

I cannot look only at the question of forum, however. If I could, I would have little doubt what my decision should be and my task would be easier. I must also consider the impact that it will have on N if I order her return. She was subjected to a major disruption in 2006. She would be subjected to another disruption now, particularly if she returns to Poland immediately before finishing her term at the school where she is doing so well and could not be settled back at St Joseph’s or into her new school in Poland on a permanent basis at the start of the new term in September. I do not know whether M’s job would remain open for her for a period whilst the future became clearer. She does not seem to have had difficulty in this respect in 2006 and, in any event, she has indicated that she is considering a slight change of direction so I have not treated this as a major issue. However, if she were to return to England after a period, N’s accommodation may be different unless M can afford to keep her lease for a temporary period. Certainly, she would have to live somewhere temporary with M in Poland if she is returned there and she and M will have a period of economic uncertainty unless and until M found suitable employment in Poland.

Comfort may be taken from how quickly N adapted on her arrival in England despite the language challenges she must have faced. I must take into account however her wish not to be returned to Poland and her fears about it. Whatever the source of her feelings, the guardian does not suggest they are anything but genuine. Her relationship with F is obviously problematic at present and it may not be that it would be possible to remedy that quickly. It is said that returning her to Poland would assist in that by improving the geography but I cannot be confident that the process would be speedy and whilst the geography may improve, N’s view of her father may not if her own perception is that he has forced this unwelcome return upon her or if she is unhelpfully led by her mother to perceive things that way.

As to N’s day to day care, F offers conventional undertakings (to operate until the first hearing in Poland following return) not to seek to remove N from M’s care in Poland, not to pursue a prosecution against M in Poland, not to molest her and to pay for the return flights.

In truth, this is now an impossible situation for all concerned. Every solution has serious disadvantages for N. Ultimately, it seems to me that N will be best served if the Polish courts are enabled to conclude their decision as to her welfare as speedily and effectively as possible. I have no doubt that this will be best accomplished if M and N are present in Poland at least for the purposes of the Consulting Centre examination being concluded and so that M can engage in a hearing before the court. It seems that it would be possible for an application to be made to the Polish court to vary the order of 23 May 2006 at any time and it is required to be dealt with very quickly, within no more than 7 days of the court receiving it. There is no information as to whether an application can also be made for permission to bring N to this country on a temporary basis. Judge Kuziak does not resolve that issue as Mr Devereux comments in his supplementary submissions but really, it is not for this court and Judge Kuziak to find that out, it is for the parties and their lawyers.

The result that I seek to achieve in the exercise of my discretion is for N to return to Poland to the extent that is necessary to enable the Polish court to determine her future and to do so with the minimum of delay. I was asked as part of the submissions if I would consider making a request to the Polish court under Article 15 of Brussels IIR for them to request that the English courts should hear the proceedings relating to N. It seems to me that this would be wholly inappropriate at this stage of these Polish proceedings. The Polish court is not simply the court with jurisdiction under Brussels IIR, it is the court best placed at the moment to deal with N’s welfare. I do not, however, consider that it is in N’s interests to return to Poland at this stage except in so far as it is necessary to enable the Polish court to determine matters or, of course, if the Polish court finally decided in favour of F or decided that M should look after N but in Poland, for the purposes of complying with the final Polish order. I will permit counsel to make short submissions before I finally decide on the way forward but what I have in mind is to order N’s return but to suspend the operation of that order so that M, who will now have to take an active and personal part in the Polish proceedings, can pursue a new application there for a variation of the interim custody order and, if it is possible in Poland, an application for permission to bring N here temporarily/permanently. I will also expect her to seek to make arrangements through her Polish lawyers for another appointment to be made for an examination of herself and N by the Consulting Centre and for the final hearing of the matter to come on quickly. I will hear counsel on the question of how long I should leave it before reconsidering the question of suspension in the light of the results of these inquiries. If no real progress were to be made by the time the matter returned to court, it might be anticipated that I would simply remove the suspension and the order would become operative forthwith. Similarly, the order should automatically cease to be suspended in the event that the Polish court requires the return of N in advance of the return date before me.