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:

“On 5^th December 2005 I left for England to work. I came back on 22^nd May, however this was not the first time I had come back; I also returned to Poland in January and I stayed here until mid-March.”

This is consistent with F’s understanding as conveyed to the Polish police during an interview he had with them on 24 May 2006 which was that she had been living abroad in England but visiting Poland.

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:

“Not seeing any other possibility of having contact with my daughter, on 24 May I went to see my daughter at the nursery school on ul. O and I took her with me. When I was taking my daughter, the head mistress wanted to check my ID, so I gave her my identity card. I heard her telephoning my husband, therefore in order to avoid a row I left the identity card with the head mistress and left the nursery school with my daughter.

I currently live with my brother, R C in a two room flat. My daughter has good living conditions and does not go to nursery school.

I do not intend to hand my daughter back to my husband. I will remain in Poland until 20^th October 2006 until the date of our divorce hearing.”

The police record of interview is signed by M to confirm receipt of her identity card and I accept that she had gone to the police station voluntarily for the purpose of recovering that card.

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:

“We arrived in Luton, I believe on the 19^th or 20^th May 2006. It was certainly before the 23^rd May when the Plaintiff went to the court in Krakow. Prior to leaving Poland I had no knowledge of the hearing on 23^rd May.”

Plainly this account is wrong. The documents which subsequently came to light proved that and M had to provide a new version of her story in her second affidavit. There she accepts that “it is clear I had been a few days out” and asserts:

“The action that I took was a drastic measure, as I did not see any other way that I could have my child returned to me.”

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:

“In view of such a response [the letter of 24 May 2006], and in particular the information contained therein of the fact that an interim decision was to be delivered to the plaintiff’s attorney and with the plaintiff still believing that it was to her that the Court had entrusted custody of the child for the duration of the proceedings, she collected the child from nursery school and took it to England, where she had been living for quite a while and where she had a permanent job, legal residence and very good housing conditions. ”

The Polish documents contain quite a lot of what must be errors as to dates. The 2 assertions by M’s lawyers in this particular document obviously cannot both be correct and it seems to me more likely that there would be a mistake in giving the date on which the letter of 24 May 2006 was received by the lawyers from the court than that the whole sequence described in the paragraph that I have just quoted should be wrong. That paragraph is, I am afraid, wholly untrue in suggesting that M thought that an interim order had been made in her favour and that she had justification for removing N from the nursery; she does not seek now to make any suggestion of a misunderstanding about what the Polish court had ordered. I see no reason to doubt, however, that M knew by the time she went to the nursery that the Polish court had made an order of some sort. It seems to me probable that at least by the time of her interview with the police, M’s lawyers had received the letter of 24 May 2006 and she had had contact with her lawyers about it and learned from them not only of the forthcoming hearing but also that there had been a decision on 23 May, although not what the decision was. As to the issue of when she was notified of what the decision was, M says in her second affidavit that she “was not served with the proceedings until August 26 via my Polish solicitors”. This is difficult to believe if it is intended to mean that M did not know the contents of the order until then. She says in her first affidavit at paragraph 23 that she remained in “regular contact” with her solicitors in Poland and the first thought is that they would have had notice of the substance of the decision and told her of it well before August 2006. However, there is an e-mail from M’s Polish lawyer dated 21 April 2008 which says that the order of 23 May 2006 was “delivered by the court to the attorney of Ms Mika on the 3^rd August 2006” and so raises the possibility that M remained unaware of what the actual decision was until the date she says. Having said this, I am cautious about placing reliance on the dates given by M’s lawyer in the light of the conflicting assertions that they made in their August 2007 application and it seems to me not at all unlikely that this is just another error. Furthermore, even if M’s lawyer is correct in what is said in the e-mail, given that the letter of 24 May 2006 had alerted the lawyer (and through him, M) to the fact that an order had been made, he could have pursued the court (or F’s lawyer) for a copy of the order if that had suited his client which plainly it did not.

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:

“Many potential plaintiffs are entirely ignorant of the existence of the Hague Convention. They may be unable to afford legal advice. They may seek the aid of local lawyers who are incompetent, slothful or generally unfamiliar with remedies in this specialist field. Accident or illness may disrupt the pursuit of the Convention’s remedies. Furthermore there are many jurisdictions without fully effective central authorities. Not all central authorities are as experienced, well resourced and effective as the central authorities of the three jurisdictions of the UK.”

It is also impossible to know whether and if so to what extent F’s Polish lawyer was unwell in the months that preceded her death and whether this impeded progress on the Hague front.

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,

“[F] emphasised that he is really missing his child, he is worried about the fate of his daughter and would like to find out in what circumstances she is being brought up. He stated that he does not want to snatch N from her mother by force, however he would like to be sure that she is not being harmed and he wants to establish systematic contact arrangements with her.

....he is currently powerless in the face of her actions and he does not know how he can enforce his parental rights vis-à-vis the child.

His priority is settling the contact arrangements with the child. He declared that he could agree an arrangement with the mother, in which he would travel to visit N alternating with her bringing the child to Poland.”

The conclusion of the Centre is that they consider it necessary to examine the conditions in which N currently finds herself and also to conduct a psychological examination of N with respect to her emotional ties with her parents and her psychophysical development.

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

“It is difficult to lend credence to the honesty and truth of the information given at the Centre by the respondent, as there he accused the plaintiff of holding the decisions of the Court in contempt, by failing to appear at hearings and not bringing her daughter to examinations at the Centre. At the same time this ignores the fact that it was he that prevented the plaintiff returning to Poland with their child by taking away their daughter’s passport. ”

As the reason that M and N are in England and not in Poland is that M wrongfully brought N to England without needing a passport for her at all, this has, at best, a hollow ring about it.

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

“have replied that the court is unable to secure that the address would not be disclosed to the father”.

The e-mail from M’s Polish lawyer dated 15 May 2008 does, indeed, confirm that the court would be unable to secure that the address would not be disclosed to F but it also says that the Polish court does not know M’s English address. If the Polish court does not have the address, it seems to me that very little weight can be put on M’s suggestion that F could have obtained it through the Polish proceedings. It is also noteworthy that M is, even now, unwilling that F should know where she is living. I would have thought this sentiment would have been at least equally strong in the weeks and months immediately after she left Poland illicitly.

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:

“Whilst the Court has much material to consider concerning N’s arrival in this country, I have little doubt that she is very settled here.”

She also says:

“I think N is highly socially skilled for her age and would therefore be likely to settle relatively easily into any situation with her mother. In my conversation with her, however, she expressed the view that she does not want to return to Poland. She berates her father for preventing her from seeing her mother and she is fearful that situation could arise again if she returned to Poland, even if she lived with her mother.”