AF v M B-F

This is an application by the plaintiff father pursuant to the Child Abduction and Custody Act 1985 incorporating The Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) and Council Regulation (EC) No. 2201/2003 (“Brussels 2 Revised”). It concerns his two sons M born on 28 December 1994 who is now 13 years old and K born on 23 March 1996 who is now almost 12 years old (“the children”). The Defendant is the mother of the children who arrived with them in England in December 2006. She married the father in Poland in 1994, the marriage being dissolved in Poland on 26 April 2002. Post-separation the mother lived and worked in Gdansk as a dental surgeon. The father has since remarried and lives in Gdansk with his second wife and their young child. There have been previous proceedings in Poland relating to the children in which Court orders were made on 26 April 2002, (by the Regional Court in Gdansk), 1 February 2005, 15 December 2006 and 24 October 2007 (all by the District Court in Gdynia, Family Department). Copies of those orders are before me in translation.

Under the order of 26 April 2002, paragraph I pronounced the dissolution of the parties’ marriage, paragraph II dealt with the question of “parental authority” and paragraph III dealt with detailed provisions as to contact. The father was granted contact every Tuesday and Thursday from 4pm – 6.30pm and every second Friday from 4pm to Sunday at 6.30pm, with provision also for holiday contact.

Paragraph II of the order provided that the mother should:

“Exercise parental authority over … [the children] … with restricted authority for the father only to co-decide on their vital problems in connection with upbringing, education and medical treatment”

The order of 1 February 2005 was made upon an application by the father, following disputes and difficulties in relation to contact, in which he claimed “Deprivation of [the mother’s] Parental Authority and Amendment to paragraph (II) in the order … dated 26 April 2002”. The decision is recorded as follows:

“(1)

To limit the parental authority exercised by [the mother] and [the father] over [the children] … in the following manner:

- [the father] and [the mother] must both start family therapy run by a psychologist …

- Subject the parental authority by [the mother] to court family curator supervision, who is supposed to make monthly reports on the course of the events starting on 1 April 2005, which at the same time alters the meaning of paragraph II in the order … dated 26 April 2002 …

(II) … to maintain the effect of the restricted parental authority of [the father] to follow paragraph II in the order … dated 26 April 2002 …”

The order of 5 December 2006 recorded a decision of the Gdynia court to amend paragraph III of the order of 26 February 2002 (which date it is clear is a misprint for 26 April 2002):

“… to the extent that the presence of the Court Family Curator be present at the onset of the contacts described in paragraph III of the said Judgement”

I refer to the terms of the order of 24 October 2007 at paragraph 8 below.

On 6 December 2006 the mother brought the children to England without first informing the father. This is not in dispute. In her affidavit sworn by way of defence to these proceedings, the mother briefly sets out her position in Poland before she left which was one of dispute with the husband over finances and the amount and timings of contact visits which she wished to reduce and which the children were reluctant to fulfil. She recognises that the Court Family Curator (referred to in the second and third court orders) was then active in trying to ensure that contact took place, but states the last time contact had actually taken place was about July 2006. The mother makes clear that she was in financial difficulties because, although a qualified dentist, she was unable to get a contract with the government health service and the father was in substantial arrears of maintenance. (The father asserts that he was paying maintenance, but it is clear from court documents that there were substantial arrears). The mother was bearing the burden of supporting the family. She had visited England in September 2006 to explore the possibilities of coming and practising as a dentist over here, discussed the plans with her children and brought them to England with their agreement. She does not suggest that she discussed her plans with the husband. She visited England in November 2006 to arrange places at schools in England for the boys and makes clear that:

“In all this period of time I was not in touch with the court and had not spoken to the curator.”

She states however (as her solicitor confirms) that she informed her Polish solicitor that she was planning to move to England and was advised that she could do so lawfully because she had the care of the children under the court order and could decide where they lived. Indeed, as her solicitor has acknowledged in a letter before me, she personally encouraged the mother to take a job abroad. The mother instructed her solicitor to write to the court and explain that she was living in England and to give her address in Lancashire. The solicitor wrote to the Court in the form of an application to the court dated 20 December 2006 headed “Motion for Contacts to be Suspended”, applying “for suspension of contacts of [the children] with their father …” Under the heading “Justification” the application states that on 6 December 2005 [it is not in dispute between the parties that this must be a misprint for 2006] the mother went to work in Great Britain and that she went there with her children “due to economic reasons”. Having set out the mother’s economic difficulties and the outstanding maintenance, the application stated:

“On her return to the home country she will notify the father of [the children] to re-establish their contacts.”

It would thus have appeared to the court that the move to England was of a temporary nature.

The application of 20 December 2006 did not state the wife’s address in England, a fact of which the mother accepts she became aware, having seen a copy of the application once made. She did not herself notify her new address in England to the father. Nonetheless, she relies upon statements of the children that they had informed the father of their intended move to England and that he appeared to accept it. The father does not state when he first knew of the move to England. He simply states that he first made telephone contact in September 2007. Nor does he say when he first knew the mother’s address. The mother asserts (and I accept) that the father could readily have found her address on the internet and/or by consulting the General Dentist Council website which contained her name and home address as recorded in its register and has been the same throughout her time in England.

At some date prior to 24 October 2007 the Gdynia Court inquired of the mother’s solicitor when the mother and children’s return to Poland could be expected. The solicitor informed the Court that she was unable to say. Thus, on 24 October 2007 the Gdynia court made the last of the orders to which I have earlier referred, namely a decision to “suspend executory proceedings” in respect of item II of the original court order of 26 April 2002. It records that the mother’s attorney by a procedural writ of 23 October 2007:

“Confirmed prior information resulting from the probation officer’s i.e. the Court Family Curator’s inquiry that [the mother] – on the day of 6 December 2006 – went, with her children, to Great Britain for employment purposes and the date of her return to Poland is not known. Under such circumstances, as [the mother] is absent from this country, execution of the probation officer’s supervision is hindered. Therefore the suspension of executory proceedings is currently necessary.”

The father by his affidavit, disputes the mother’s assertion that the difficulties over contact in Poland arose from his default or unreasonable attitude. He blames her for those difficulties, and asserts that in truth they arose because of the mother’s obstructive attitude and deliberate creation of prejudice in the minds of the children against him. In this respect he is supported by an opinion of two psychologists in Poland reporting under an order of the court of Gdynia on 31 May 2006 (which order is not before me) in relation to the difficulties over contact which had developed when the boys were 11 and 10 respectively. The conclusions, which were supportive of further contact with the father as ordered, included the following passage:

“The analysis of the materials gathered show that the present negative attitude of [the children] towards the father is not their independent decision, but results from the long-term conflict between their parents and instilling certain attitudes by their mother, as well as from long-term lack of contact between the father and his sons.

In our opinion, [the father’s] active participation in their upbringing and education is essential to the proper development of the children. Their mutual contacts should take place according to the legal decision in force (every 2^nd and 4^th weekend of the month and part of the holidays and winter break).”

By her statement of defence and through her counsel Miss Taylor, the mother concedes that she was habitually resident in Poland prior to removal to England in December 2006. However, she relies on three matters by way of defence.

The first of these is that she does not concede that the father had rights of custody in respect of the children pursuant to Polish law at the time of their removal to England by the mother in December 2006. She asserts that the existing court orders gave her the legal right to determine where the children’s residence should be. In directions ordered by Ryder J on 10 December 2007, as well as providing for the service of evidence and a CAFCASS officer’s report in respect of the child’s also advanced (see below), it was ordered that there be joint instruction of a Polish expert regarding the question of whether the father had rights of custody on which to base the proceedings, such report to be filed and served by 21 January 2008. That report has not in fact been obtained, owing apparently to difficulties in obtaining the services of a Polish lawyer. However, the parties are anxious that the matter should be disposed of promptly, as indeed is the duty of the court, and they proposed that I proceed with the hearing.

That gives rise to an inherently unsatisfactory position. I am mindful of the observations of the editors of the Family Court Practice 2007 at page 509 that where there is an issue whether the foreign law gives the applicant custody rights or not, the Court should resist the temptation to make its own findings as to the foreign laws applicable and should be reluctant to allow rights of access to a child to metamorphose into rights of custody. In my view, evidence is particularly desirable, in a situation where, without it, the Court is obliged to form its own conclusion upon the basis of a series of orders translated into English without the assistance of expert evidence as to the nuances of the wording, or guidance as to the nature or extent of the rights of the parties under the relevant law. That said, however, in the light of the parties’ readiness to proceed and in particular the willingness of the father, as the party upon whom the burden of the issue lies, I propose to accept the parties’ invitation because, in the event, the position seems to me to be susceptible of decision with reasonable confidence.

By Article 5 of the Convention:

“(a)

“rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;

” (b) “rights of access” shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.”

As observed by the Special Commission called to discuss the operation of the Convention in 1993:

“The key concepts which determine the scope of the Convention are not dependent for the meaning on any single legal system. Thus the expression “rights of custody”, for example, does not coincide with any particular concept of custody in domestic law, but draws it meaning from the definitions, structure and purposes of the Convention.”

See also the observations of Lord Donaldson MR in Re C (A Minor) (Abduction) [1989] 1 FLR 403 at 412.

In Re D (A Child) [2007] 1 FLR 961, at paragraph 26 Baroness Hale made clear that in each case:

“The question is, do the rights possessed under the law of the home country, by the parent who does not have day to day care of the child, amount to rights of custody or do they not?”

In that case, the House of Lords held that if a parent, who does not have such day to day care, nonetheless has a right to veto the removal of the child from the home jurisdiction, that right amounts to “rights of custody” within the meaning of Article 5(a) of the Convention (see paragraph 37). However, a distinction was drawn between that position and the existence simply of a “potential right of veto”:

“In other words, if all that the other parent has is the right to go to court and ask for an order about some aspect of the child’s upbringing, including relocation abroad, this should not amount to “rights of custody”. To hold otherwise would be to remove the distinction between “rights of custody” and “rights of access” altogether.”

In so holding, Baroness Hale made clear that her interpretation not only coincided with the understanding of English and Scottish Courts hitherto and what appeared to be the majority of the common law world, it was the appropriate solution within the autonomous jurisprudence of the Convention, (see paragraph 28 of Re D).

On that basis I turn to the terms of the order of 26 April 2002, the structure of which seems plainly to be directed to resolution of the issues between the parties as to (I) dissolution (II) “parental authority”, which I take to mean “rights of custody”; (III) the manner and extent of the fathers “contacts with the minor sons”, which I take to be “rights of access” by way of distinction from “parental authority” and (IV) maintenance and the education costs of the children.

The form of paragraph (II), as seems to me equally clear, is to award parental authority to the mother in the sense of responsibility for the day to day care and problems of the two children while providing/ reserving to the father restricted (parental) authority to “co-decide” with the mother “vital problems” in connection with upbringing, education and medical treatment”.

As observed by Baroness Hale in Re D at paragraph 26, in relation to the question whether the rights possessed by the parent who does not have the day to day care of the child amount to rights of custody, the laws of individual states may differ widely in their approach to parental rights:

“They may regard the whole bundle of rights and responsibilities which the law attributes to parents as a cake which can be sliced up between the parents: one parent having the custody slice, with the package of rights which that entails, and the other having the access rights, with the different package of rights which that entails. This is by no means an unusual way of looking at the matter. Alternatively, the state may regard the whole bundle of parental rights and responsibilities as inhering and continuing to inhere, in both parents save to the extent that they are removed or qualified by the necessary effect of a court order or an enforceable agreement between them.”

In Re D there was expert evidence upon those questions. I have none. However, it seems clear to me in this case that the parental authority (custody rights) over the children were not exclusively awarded to the wife, but were subject to (i.e. obliged to be exercised in accordance with), a right of co-decision in the father in relation to what were called “vital problems” in connection with upbringing, education and medical treatment. To that extent, parental authority was to be shared. In that respect, the precise ambit of the expression “vital problems” may well be open to argument in Polish law. However, as it seems to me, a long term change in the childrens’ place of residence from Poland to England (as opposed to a holiday or short term visit) with its obvious serious implications for their upbringing and education, as well as for the father’s rights of access plainly constitutes a “vital problem” in connection with both the upbringing and education of the children which required co-decision, and thus created a right of veto in the father in the absence of agreement. No doubt, if agreement could not be reached, a court decision would be necessary. However, the father’s (restricted) custody right is to be found in his right of veto and not in a mere right to apply to the court and ask for an order relating to the child’s upbringing (including the question of relocation abroad).

It is clear from the evidence before me that, when the mother moved to England with the children, she did so (1) with the intention of setting up home with the children in England on an indefinite basis (2) having already arranged a change in their schooling (3) without having informed, let alone sought to reach a joint decision with, the father. That being so, I conclude that her removal of the children to England was in breach of the father’s rights of custody.

I should perhaps add that while I have referred to absence of a joint, or any, expert opinion on the question of the father’s rights of custody, the mother has exhibited and relied upon a letter dated 8 January 2008 from her Polish lawyer which contains the statement that Polish law did not obligate the mother to obtain the father’s or Court’s permission to take the children abroad if the Court decided that the children should stay with the mother. The letter further notes that, on the lawyer’s notifying the Polish Court that the children had left for abroad on 27 January 2007, the Court did not itself institute any proceedings. Nor did it do other than suspend the requirement of supervision by the Court Family Curator. I do not find that letter helpful for two reasons. First, because it comes from a lawyer who had personally encouraged the mother to take the job abroad and advised her that she did not require the Court’s permission for that purpose; to that extent the lawyer may be regarded as an interested party in the outcome of the proceedings. Second, it seems to me no more than a general statement insufficiently addressed to the terms of the order of 26 April 2002 and in particular to the effect of the limitation placed upon the mother’s exercise of parental authority by the father’s right of co-decision in respect of “vital matters” (c.f. the terms of the parties’ joint instructions to the proposed expert dated 18 January 2008). Nor does the solicitor’s letter advert to any distinction, as encountered in most jurisdictions, between taking a child on holiday or other temporary trip abroad, which does not affect the child’s place of residence, and a move abroad with the intention of setting up home there on an indefinite basis. That being so, I turn to consider the defences advanced by the mother on the basis that the father has discharged the burden of proof that the children were removed in breach of his custody rights.

The mother relies on two further matters by way of ‘defence’ under Article 13 of the Convention.

The first defence is that of acquiescence in relation to which the mother relies upon the provision in Article 13 of the Convention that the court is not bound to order the return of a child if the person who opposes return establishes that:

“(a)

The person, institution or other body having the care of the person of the child… had consented to or subsequently acquiesced in the removal or retention.”

In this respect the mother concedes that she removed the children from Poland without the father’s knowledge or permission, but asserts that the father was aware of the move she proposed to make and subsequently made to England. She does not go so far as to aver that the father consented to such removal, but she does assert that he has acquiesced to the change of habitual residence by failing, following their removal, to take any action in respect of the return of the children for over 11 months, thereby allowing them to become settled in a new home, to make new friends, to attend their new school and engage in a different educational system.

For the test of acquiescence, one resorts to the well known decision in Re H (Abduction: Acquiescence) [1997] 1 FLR 872 per Lord Browne-Wilkinson. That decision makes clear that the burden of proving that the plaintiff in Convention proceedings has acquiesced in the wrongful removal of his or her child lies upon the abducting parent. Further, for the purposes of the Convention, acquiescence is a subjective state of mind, which is a pure question of fact. In the instant case, where there is no evidence of any statement by the father indicating his acquiescence in the wrongful removal between the time when it occurred and the time when he issued proceedings, nor any clear and unequivocal action on his part by way of acquiescence, the mother is in effect inviting the court to infer a subjective intention to acquiesce based simply on the delay in issue of proceedings under the Convention until just over a week before the expiry of 12 months from the removal of the children to England. It is of the course the position that, after that period, a defence of “settlement” would potentially become available to the mother under Article 12.

I do not consider that the state of the evidence in this case is such that acquiescence can be established.

A parent cannot be said to have acquiesced in the unlawful removal or retention of a child unless he is aware of the act of removal or retention, is aware that it is unlawful and is aware, at least in general terms, of his rights against the other parent. In this case, the evidence does not establish when or how the father became aware of wrongful removal of the children. Although the children have stated to the CAFCASS officer (see further below) that the father was aware of the intention of the family to depart for England well before such departure occurred, I lack evidence as to when the father learned such removal had occurred. Despite the issue of acquiescence and or/ delay by the father having been clearly raised by the mother in her defence, the father has not seen fit to make clear in his evidence (a) when he first realised removal had occurred or (b) why his application was so long delayed after such removal. In the light of (i) his refusal to engage on this question, (ii) the fact that prior to departure the mother lived and worked in the same town, (iii) the fact that court involvement over contact was current, (iv) that he would soon have been aware that the contact earlier ordered was not taking place, and (v) that he was in possession of the mobile telephone numbers of the mother and children, I infer that the father would have been aware of their departure to England within a few weeks at most of the removal.

As already noted, it is not clear when the father acquired knowledge of the mother’s address or what efforts he made to find out and/or to commence proceedings before the eleventh hour (at which date he was able to state where the family was living in England). Despite that, the burden of establishing acquiescence as a subjective state of mind on the part of the father rests upon the mother, who is herself vague on the question of dates. It may well be that despite the removal of the children, the husband was not anxious to stir up matters for his own reasons, not least because he was in arrears of maintenance, which the mother was unlikely to pursue while she remained in England. Nonetheless, despite his delay in commencing proceedings under the Convention, I am not prepared to infer from the evidence before me that the father ever acquiesced in the removal of the children. It is not enough simply to show that he issued his proceedings late. Mere inaction, does not itself amount to acquiescence and, the quality of the evidence before me is such that I am unable to infer it. I am unhappy about the delay and the absence of explanation for it, however, to infer acquiescence on the basis of an absence of chapter and verse from the father seems to me in effect to reverse the burden of proof in relation to acquiessence, in a situation where the mother herself does not assert that any action or inaction by the father has influenced the course of her conduct either in coming to, or remaining in England. In my view there is insufficient evidence to establish acquiescence in this case.

Article 13 of the Convention provides that the court may refuse to order the return of a child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

The mother relies upon the defence of the objections of each of the children to returning to Poland in the light of the report of Beatrice Weydert an officer of the Children and Family Court Advisory and Support Service (CAFCASS) in support of which Miss Weydert gave oral evidence before me.

Ms Weydert interviewed both boys together on 8 January 2008 in an interview lasting just over an hour, having read the bundle of evidence beforehand as well as the childrens’ school reports which demonstrate excellent progress at their English schools and praise their application, motivation and achievements. It is clear that their attainment is broadly in line with, or better than, the ordinary expectation of their age and ability. The comment is made that this is particularly creditworthy as English is not their first language. Both are said to be happy and thriving.

The assessment of Miss Weydert was that both boys were intelligent articulate, able to reason well and to put over their views. The views appeared to be their own and Miss Weydert considered that they had not been coached or coerced in what to say during the interview, their responses being spontaneous and mirrored by their body language. She found each boy’s degree of maturity was commensurate with his age.

Both boys were clear and emphatic that they did not wish to return to Poland. On indicating that they understood the purpose of being interviewed was to obtain their views and objections in relation to return, M, the elder became quite agitated:

“I do not understand why our father is putting us through this, we told him about our move to England before we left and he seemed fine about it. He did not try and stop us or our mother from leaving and seemed not interested at all about where or why we were going. I thought all was well and was shocked when the police came to ask for our passports.”

K, the younger brother added that the father:

“… did not seem angry when we told him about going to live in England; he seemed to accept it … we are very happy in England with our mother and “nan” [maternal grandmother] and we do not want to leave. If I am made to leave I will stop eating and drinking.”

Asked about their current circumstances in the United Kingdom, both boys indicated that they were well settled in Lancashire, loved their school and their after school activities and had made close friends in and out of school. They talked with animation and smiled a great deal in relation to the quality of their life in the UK.

When the discussion turned to their life in Poland, both were tearful at the prospect of returning to Poland and stated that they would find it difficult to return even if their mother decided to go back as they feel their home is now in the United Kingdom where they love their school and friends and where they feel much safer than in Poland.

They stated that they could not remember ever having lived with their father who left the family home when they were both still young. They did not love him in the way they cared for their mother and his recent action in bringing the matter to court had further alienated them from him. Both gave examples to illustrate their statement that their father did not care for or about them. K said he was very hurt that, despite being invited, his father failed to attend his first Holy Communion. M stated that he was deeply let down when, despite making promises to the contrary his father failed to attend swimming championships which M won.

They both made complaint that they had grown to dread visits to their father who would on occasion hit them with a belt. M said that they could not work out when he was likely to strike them as he was very moody and could get angry very quickly even if they had done nothing wrong. He shouted at them all the time. K added that the father made them kiss his new wife when they visited and told them they would not be allowed to leave until they had done so, even though they did not want to kiss her as they did not like her.

They stated that they had tried to like their father better but he had not responded to efforts by them to engage him in their activities and interests when in Poland. They had tried to set up telephone and letter contact with him in Poland once they arrived in the United Kingdom but he had not responded. K stated “he didn’t even reply to our Christmas card”. Neither understood why he was now seeking their return. Asked how they would feel if a decision was made for them to return to Poland, M responded “even if you paid me a million I would not return, I would simply run away”. K added “I would stop eating and drinking and hide where no one could find me”.

Challenged in cross-examination on the question of whether the boys appeared to be speaking of their own volition or as a result of “coaching” by the mother, Miss Weydert, who is a very experienced CAFCASS officer, was quite clear that this was not so. She said that, when describing the father’s uncertain temper and violence towards them, she was quite satisfied that the symptoms of distress which they showed were not made up. She was also quite clear that the boys were genuinely bewildered and agitated at the attitude of the father because he had been told by them of the move to England and appeared to greet it with equanimity. She was also satisfied of the genuineness of the assertions on the part of M that he would run away if ordered to return and in the case of K that he would hide where no one could find him. Their emotions were plainly not histrionic but genuine.

In Re M (A Child) [2007] EWHC Civ. 260, the Court recently reviewed the questions which need to be explored by a judge when considering a defence of Child’s Objections. They may be summarised in this way. (1) Are the objections to return made out? In this connection is the child objecting to being returned to the country of habitual residence, as opposed simply to expressing a preference for staying with the abducting parent? (2) Has the child reached an age and degree of maturity at which it is appropriate to take account of his views? (3) In this connection have those views been shaped or coloured by undue influence or pressure directly or indirectly exerted by the abducting parent to an extent which requires such views to be disregarded or discounted? (4) If, and to the extent that, it is appropriate to take account of the child’s objections, in exercising the Court’s discretion whether or not to order return, what weight should be placed on those objections in the light of any countervailing factors, and in particular the philosophy of the Convention or what have been called the “Convention considerations”. These are that both the deterrence of abductors and the welfare interests of children are generally best served by the making of an order for prompt return to the requesting state for consideration of the position by the appropriate home court; they also include comity and respect for the judicial processes of the requesting state, as well as welfare considerations directed to the position of the child in question.

As to question (1) I am satisfied that each of the children’s objections have been made out in the sense that they are sincere and largely based upon an objection to return, as opposed to a simple preference for staying in the care of the mother. If a child’s objections to return result solely from a desire to remain with the abducting parent, who in turn does not wish to return, then little or no weight should be attached to the child’s objection: see S v S (Child abduction) (Child’s views) [1992] 2 FLR 492. However I do not think that is the case here. The objections very considerably rest upon the happiness and feeling of security of the children in their new school where they are doing so well and their general environment and feelings of security in England. Both children state that, even if their mother went back, they would themselves find it very difficult to return. It is also plain that such reluctance stems from the prospects of a renewed regime of visits to the father in the face of what they state to be his unpredictability and occasional violence, and in that sense their expressed desire to return depends in part upon their preferred choice of carer. However, the wording of article 13 does not inhibit the court from considering the objections of a child to returning to a particular carer (see Re M (A Minor) (Child Abduction) [1994] 1 FLR 390. Similarly, as it seems to me, the Court may consider objections to returning to a particular regime of contact with a feared parent, albeit that consideration is of little influence where (as here) day to day care would remain with the abducting parent on her return who would have the opportunity to apply to her home court for a welfare-based review of that regime and/or for consent to reside with the children in England.

As to question (2), I am satisfied on the basis of the CAFCASS report and the clear and persuasive evidence of Miss Weydert that, at age 13 and almost 12 respectively, and as possessors of reasoned and clearly stated objections, the children are both of an age and degree of maturity in which it is appropriate to take account of their views. Indeed Mr Rosenblatt has not sought to argue to the contrary. Nor has he sought to dispute the evident strength of their objections. What he has done, is to challenge the validity of those views, or at any rate the weight which should be given to them on the basis of that the mother has “coached” the children, or at any rate so poisoned their minds against the father in the past that what they say cannot be treated as a true reflection of the position. In this respect he relies on the examination made and conclusions formed as to the infection of the boys’ minds by the mother against the father, as set out in the joint psychologists’ opinion of 31 May 2006 to which I have already referred.

The contents of that report present me with a dilemma. Without it, I would have no reason to question the assessment of Miss Weydert as I have described it. Furthermore, I am influenced by the fact that, in relation to three important matters which have affected the children’s views, I have no contradictory evidence from the father, despite the fact that he has been in possession of Miss Weydert’s report in ample time to file a further statement. Nor did Mr Rosenblatt, (who made clear that his cross-examination of Miss Weydert was conducted on the basis or instructions received from his client in full knowledge of the content of the CAFCASS report) explore those matters with Miss Weydert, despite her evidence that the children had been both specific and, apparently credible in what they said. The three matters are these.

First, the children said that they had told the father of their intended move to England; second, they expressed fear of him on the ground that he was unpredictable and had struck them on a number of occasions; third, they said that they had made both telephone and letter contact with him in Poland after their arrival in England but that he had not responded even by a reply to their Christmas card. The only point put to Miss Weydert on these specific topics was the suggestion that, because the Christmas card had been forwarded to the father by the mother’s solicitors, it was therefore not worthy of a personal reply.

The joint psychologists’ report, however, raises serious questions, concluding as it does that the negative attitude of the children to the husband over the years since the parties were divorced has largely resulted from infection by their mother. It is of course the position that the report is over 18 months old and relates to the period up to May 2006. We are now over 18 months on and the boys are of an age where they are certainly able to form and express views of their own and are not necessarily simply reflecting the views of the mother when they express them. Nonetheless, the following aspects of the report impact upon the assertions of the children to Miss Weydert.

Miss Weydert makes clear in the conclusion to her report, that the boys attitude is in considerable measure based upon the view that the father showed little interest in them when they were still living in Poland and upon their allegation of physical and emotional abuse at the hands of their father, coupled with the fear that such alleged abuse may continue if they were to return. As to the former, it is plain from the psychologists’ report that, contrary to the assertions of the mother, the father showed repeated interest in contact, which appears to have been frustrated by the mother’s intransigence and her arrangement of the children’s affairs in a way which made it difficult for such contact to take place. As to the latter, a passage in the report also casts doubt upon M’s expression of fears of violence from the father, in that it states in respect of M:

“Currently, the boy negates frequent contact with his father, especially sleeping at his house, but he cannot justify the clear aversion towards his father and his visits. His strongest argument is the reluctance to meet the participant’s wife, whom [the mother] does not like and whom the boy accuses indirectly of the family break-up.”

Elsewhere in the report it states of M:

“The child is convinced that in order to be completely accepted by the mother, he needs to reflect her attitude, feelings and behaviour towards the father. The minor is well-oriented in the parental conflict and clearly sides with the mother. Living with the [mother], he observes her behaviour and is aware of her negative attitude towards the father, his wife and contacts with the minors. The boy is clearly imbued with the mother’s negative feelings and opinions concerning the participant. Together with his brother, [K] witnesses the conversations of his mother (often with their grandmother) concerning the father or the ongoing legal proceedings. Thus, the mother (and, indirectly, also the grandmother) influences in a negative way (maybe even self consciously) her son’s attitude towards his father and his visitations.”

Given that the mother states that contact ceased in July 2006, two months after that report, and that in December 2006 she left for England where she and the grandmother now live with both of the children, it is difficult to conclude other than that their attitude is likely to have persisted. That said, however, in the light of Miss Weydert’s evidence, I do not doubt the correctness of her assessment that the boys are expressing their own now firmly held and genuine objections, based in large measure on their own perceptions. In particular, there is no reason to question their fervent wish to stay in England as the place where they are now happily and successfully settled at school with a milieu of friends and interests which they lacked in Poland. I do not consider that the objections of the children or Miss Weydert’s views as to the force and genuineness with which they are held are so undermined by the psychologists’ report that I ought not to entertain them or enter upon the exercise of weighing them in the balance against the Convention considerations. I therefore proceed to question (4).

In exercising my discretion, I propose to approach the matter on the basis of recent observations of Baroness Hale in the House of Lords in Re M (FC) and Another (FC) (Children) (FC) [2007] UKHL 55 at paragraphs 36 to 46 in which a corrective was applied to the views previously expressed by the Court of Appeal in cases such as Zaffino v Zaffino [2006] 1 FLR 410 Vigreux v Michel [2006] 2 FLR 1180, and Klentzeris v Klentzeris [2007] 2 FLR 996 that, in relation to the exercise of discretion under the Hague Convention in a child’s objections case an additional test or requirement of “exceptionality” is appropriate when the Court comes to weigh the policy considerations underlying the Convention against the general welfare considerations affecting the child in the individual case.

In Re M, the House of Lords was concerned with a non-European Hague Convention case and this raises the question whether Baroness Hale’s observations extend equally to those Hague Convention cases which are subject to Brussels 2 Revised, which was of course the position in Vigreux v Michel. In my view they do.

At paragraph 37 in Re M, Baroness Hale put the matter thus:

“… a view has crept in that “exceptional” is not merely a description, to be applied to the small number of exceptions in which the court has power to refuse to order a return, but also an additional test to be applied, after a ground of opposition has been made out, to the exercise of the Court’s discretion.”

At paragraph 40 she concluded:

“40… I have no doubt at all that it is wrong to import any test of exceptionality into the exercise of discretion under The Hague Convention. The circumstances in which return may be refused are themselves exceptions to the general rule. That in itself is sufficient exceptionality. It is neither necessary nor desirable to import an additional gloss into The Convention …

42.

In Convention cases there are general policy considerations which may be weighed against the interest of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the Contracting States and respect for one anothers’ judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also the deter abduction in the first place. A message should go out to potential abductors that there are no safe havens among the contracting states.

43.

My Lords, in cases where discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The Court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the Court a discretion in the first place and the wider considerations of the child’s rights and welfare. I would, therefore, respectfully agree with Thorpe LJ in a passage quoted in para. 32 above, save for the words “overriding” if it suggests that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not.”

[The passage quoted by Baroness Hale at para. 32 was that contained in para. 38 of the judgment of Thorpe LJ in Cannon v Cannon [2005] 1 FLR 169:

“For the exercise of a discretion under The Hague Convention requires the Court to have due regard to the overriding objectives of the Convention whilst acknowledging the importance of the child’s welfare (particularly in a case where a Court has found settlement), whereas the consideration of the welfare of the child is paramount if the discretion is exercised in the context of our domestic law.”]

At paragraph 44 Baroness Hale stated:

“That, it seems to me, is the furthest one should go in seeking to put a gloss on the simple terms of the Convention. As is clear from the earlier discussion, the Convention was the product of prolonged discussions in which some careful balances were struck and fine distinctions drawn. The underlying purpose is to protect the interest of the children by securing the swift return of those who have been wrongfully removed or retained. The Convention itself defined when a child must be returned and when she need not be. Thereafter the weight to be given to Convention considerations and to the interests of the child will vary enormously. The extent to which it will be appropriate to investigate those welfare considerations will also vary. But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be.”

In paragraph 45, Baroness Hale referred by way of illustration to the likelihood of different outcomes in a case where the discretion is being exercised in relation to an Article 13(b) defence on the one hand and consent or acquiescence on the other. She then turned to consider the position in child’s objections cases and stated at paragraph 46:

“In child’s objections cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: First that the child herself objects to being returned and second, that she has obtained an age and degree of maturity at which it is appropriate to take account of her views. These days, and especially in the light of article 12 of the United Nations Convention on the rights of the child, Courts increasingly consider it appropriate to take account of a child’s views. Taking account does not mean that those views are always determinative or presumptively so. Once the discretion comes into play, the Court may have to consider the nature and strength of the child’s objections, the extent to which they are “authentically her own” or the product of the influence of the abducting parent, the extent to which the coincide or at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the great the weight that her objections are likely to carry. But that is far from saying that the child’s objections should only prevail in the most exceptional circumstances.”

In Vigreux v Michel the Court was concerned with a case in which the Judge at first instance had dismissed the mother’s summons on the basis that balancing the policy of the Convention against the strength of the child’s objection to return to France together with certain welfare considerations, the discretionary balance was weighted against the making of a return order. On appeal the order was reversed on the grounds that their welfare considerations to which the Judge had given weight, including issues as to the disruption of the child’s life and education, were powerfully outweighed by “the policy of The Hague Convention, buttressed by the provisions of Brussels II Revised” (per Wall LJ at para. [49].

In the course of his leading judgment, Thorpe LJ considered the principal submission for the mother that the Judge had failed to give sufficient weight to the French court process, the French court being fully seized in the welfare case to settle the future of the child in question. In the course of that submission counsel had submitted that the provisions of Brussels II Revised had “raised the bar” against the abductor to a level higher than that implicit in the judgment of the Court of Appeal in Zaffino. The rival submission for the defendant father was that, while it was accepted that in certain respects Article 11 of Brussels II Revised informed the operation of The Hague Convention within the European Union, the emphasis of protective measures in Article 11 was only in relation to a defence under article 13(b) of the Convention and there was nothing within the Regulation which expressly applied to a defence of child’s objections. That being so, in such a case the position remained as stated in Zaffino.

Having set out at length the interrelationship of The Hague Convention and the Regulation as expressed in Recitals 12, 17, 18 and 21 of the Regulation and the provisions of Articles 10 and 11 of the Regulation, having referred to the provisions for the Enforceability of Judgments contained in Articles 40 and 42, and to Article 60 which provides for the Regulation to take precedence over the Convention so far as any conflict is concerned, Thorpe LJ examined the welfare considerations underlying the Judge’s decision for non-return. He found them precisely the sort of considerations that Article 11(3) which provides for expeditious disposal of Convention applications by the requested state, was designed to eliminate. He also found that one of the principal matters which had founded the child’s objection and affected the Judge’s view, namely the fears of the child that his case would not receive a fair hearing in France, were given undue weight by the Judge in the light of the available protective measures in France. Upon this basis, Thorpe LJ stated at paragraph [35]:

“Therefore, in my view, this was not a case in which peripheral welfare considerations could be introduced into the discretionary conclusion. On the application for return the Judge had to weigh only the nature and strengths of PM’s objection against the policy of Brussels 2 Revised and the fact that the essential welfare investigations and decisions must be taken in France.”

However, in relation to the submission of counsel for the husband that the provisions of the Regulation “raised the bar” against an abductor above that set in relation to Hague Convention proceedings as stated in Zaffino. Thorpe LJ stated as follows:

“[37] Is my conclusion to be taken as an acceptance of Mr Scott-Manderson’s primary submission and therefore a conclusion of general application? I do not so intend, since I accept the submission of the respondents that Brussels 2 Revised is not to be taken to have achieved implicitly more than it has expressed. However, there can be little doubt as to the intention of the member states that opted for Brussels 2 Revised. The provisions relating to the return of abducted children were the most contentious and therefore the most difficult of resolution during the negotiation of Brussels 2 Revised. The resolution of the resulting impasse was the retention of the operation of The Hague Convention throughout the European region but with the fortification of what were seen, in the light of nearly 20 years of operation, as weaknesses or loopholes through which abductors were escaping. The fortifications were threefold: The emphasis on protective measures to nullify an Art 13(b) of The Hague Convention defence; The return of the case to the requesting state in the event of a refusal by the requested state; and automatic enforcement of return ordered throughout the region. The policy that underlies these provisions is clear and it is important that states bound by Brussels 2 Revised do not undermine its intended effect either in its interpretation or in its application in accordance with the stringent time limits stipulated.” (emphasis added).

In his supporting judgment, Wall LJ observed at paragraph [63] that, in his judgment, Zaffino was a restatement of well established principles and reaffirmed his observations at paragraph [30] in that case. Under the heading “The Brussels 2 Revised Dimension” Wall LJ stated:

“[78] … I think there is some force in Mr Scott-Manderson’s first ground of appeal, namely that the Judge failed to give sufficient weight as to what he described as the “European factors” deriving from the application of Brussels 2 Revised. It is of course true … that for present purposes, while Art. 60 of Brussels 2 Revised gives it precedence over the Hague Convention, the only specific provision of Art. 11 which affects the implementation of Art. 13 of The Hague Convention (apart from the need, identified in Art. 11(3) for the proceedings to be concluded within 6 weeks) is Art. 11(4) which relates specifically only to a defence under Art. 13(b), which this is not. Mr Scott-Manderson was thus unable to derive direct support from Brussels 2 Revised in his efforts to rely on the protective measures available to PM in France.

[79] Nonetheless, when the Court is considering the policy of The Hague Convention, I do not think it can shut its eyes to the fact that pursuant to Art. 11(8) the French court, in the event of an order for the non-return of PM, can subsequently require his return; and if it does so, the English authorities have no alternative but to comply.

[80] I am, of course, far from saying that in a case to which Brussels 2 Revised applies, no child’s Art. 13 defence will ever, or should ever succeed. That this is manifestly not the case is clear from the terms of Art. 11(8) itself, which plainly envisages non-return orders being made. Nonetheless, in my judgment, when one is considering the policy of The Hague Convention in a case where there are active proceeding pending in the court of the child’s habitual residence, and where that court is plainly seized of all determinative welfare considerations, Art. 11(8) seems to me, at its lowest, a reinforcement of the policy of The Hague Convention, and thus falls to be considered in the exercise of discretion.”

It is clear to me that the observations of Baroness Hale (with which all their Lordships agreed) expressly disapproving the addition of any exceptionality test over and above the express requirements of the Convention are of general application and they are apt to apply in all Hague Convention cases, including those brought under Brussels 2 Revised, save to the extent that the provisions of Brussels 2 revised may otherwise so provide. As identified by Thorpe LJ in Vigreux v Michel, there are three provisions in Brussels II Revised whereby the effect of the position under the Hague Convention has been fortified. By Article 11(4) of Brussels 2 Revised, an Article 13(b) Convention defence is precluded if it can be established that adequate arrangements have been made to protect the child after its return. By Article 11(6) and (7), provision is made for return of the case to the requesting state in the event of refusal by the requested state; and by Article 11(8) an order for return subsequently made by the requesting state is automatically enforceable throughout the Union. None of those provisions acts to reduce or qualify the “at large” discretion in respect of child’s objections under Article 13.

There remains the point that, to the extent of the fortifications mentioned, the policy of the Hague Convention has been “buttressed” by Article 11 and thus in reaching its discretionary decision in child’s objection cases, the Court will and should bear in mind that, to the extent that the court of the requesting state may reverse its decision if it sees fit, a decision for non-return made in the immediate welfare interest of the child, unless solidly based, may well prove counter-productive so far as the child’s overall i.e. longer term, welfare interests are concerned. However, as it seems to me, the overall nature of the Court’s task in performing its balancing exercise as between welfare and other Convention considerations remains the same whether or not the Convention case is governed by Brussels 2 Revised.

To the extent that the defence of child’s objections raises welfare issues in this case, the background against which they fall to be considered is this. Before moving to England, the mother was living with the children in a private 3-room flat in Gdynia which had been the matrimonial home; she was paying all the bills and in arrears with the mortgage/rent. In September 2006 she had cashed in a life policy in order to ensure that she kept up her payments. She has kept them up and thus the flat is available to her and the children if an order is made for their return. If that order were made, the mother would return with the children, but at the price of losing the dental practice she has established here which enables her to live well (with the grandmother) and maintain payments on the flat in Gdynia despite the failure of the father to keep up his maintenance payments, and to provide a more affluent lifestyle for the children, including holidays abroad. The father is also living in a 3-roomed flat with his wife and child and is not in regular work. He does not seek the day to day care of the children, but simply to enforce his access rights. Thus, the practical effect of making an order for return will be generally disruptive and damaging to the finances of the family and their standard of living will be much reduced, but the welfare of the children so far as their day to day care and immediate physical needs are concerned will not be adversely affected.

However, there are broader welfare considerations inherent in the objections voiced by the children. As to the first of these, I do not attach substantial weight to their asserted fears of violence on the part of the father. There is a real question mark as to the substance of the allegations and, upon their return to Poland, further contact could be supervised by the Family Court Curator if it appeared necessary. As to the children’s belief in their father’s indifference to their departure, while it seems to me that the father’s delay of 11 months in issuing proceedings and seeking to re-establish contact may well have afforded them some basis for that view, it is not a matter which represents any threat to the children’s welfare.

The welfare aspect of real substance and concern arises from the contemporary evidence of Miss Weydert and the content of the school reports in England on the one hand, and the Polish psychologists’ joint report of May 2006 on the other. The picture they present involve a stark contrast between the success, happiness and security experienced by the children in their school, social circle and surroundings in England, and the position as it was recorded in Poland over 18 months ago.

M was stated in Poland to have a ‘bad and difficult situation’ at school, not only being a poor student but having a history of problems in the school group of his peers by whom he was not accepted. Since June 2005 he had been under the supervision of a psychologist from the mental health centre for children and youth at Gdynia, with a preliminary diagnosis of emotional distortion. The view was expressed that his mother had a wrong understanding of his cognitive needs, distorting his social functioning, which led to non-adaptation at school and lack of proper interpersonal skills. She was also said to be unable to co-operate with teachers properly, being a very conflicting person.

K was reported, like his older brother, to be under the supervision of a child psychologist and to have a history of emotional distortions caused by the current family situation as well as signs of Attention Deficit Hyperactivity Disorder. 18 months on, no such suggestions of any kind are evident in the apparently thorough school reports placed before me, in which M is described as an enthusiastic student, working well and having settled in quickly to life in the school as a member of his class. So far as K is concerned, under a heading “Personal, Social and Emotional Development” he is described as deserving great praise for his hard work at the school, as being a very likeable pupil who has taken part enthusiastically in all that he has done and as having made friends quickly and become a popular member of his class. The view is expressed that he will continue to shine in the future. The mother is described as being supportive of the school, maintaining contact and ensuring that the boys work hard at their lessons. Finally, in the report of the deputy head master it is stated in respect of both children that there have been no reported instances of any problems with their peers nor any issues with either of them in school. Both are said to be happy and thriving at school, joining with other pupils playing football during the lunch break and taking part in extra-curricular activities.

In the Polish report the difficulties of the children at school were primarily attributed to the pressurising and pedagogical attitude of the mother in relation to the children’s education and activities; and the difficulties over contact were principally attributed to the mother’s obstructive attitude. The unfortunate position reached so far as the parents were concerned was that, after many years of separation, they:

“… still remain in a conflict, bear a grudge, even hostility against each other. They cannot communicate even on the simplest issues concerning the children, they hardly talk to each other. They treat the whole case as a success or a defeat. They are both responsible for this conflict because of their reluctance to reach an agreement, however, the mother is much more responsible for this situation (contact with the children).”

The conclusion on contact was that the boys would benefit from, and indeed were in need of, further contact with the father in the interests of their long term development and it seems clear that this recommendation was accepted by the Gdynia Court. That acceptance was almost certainly a motivating reason for the wife’s decision to move to England in addition to “economic reasons”. That being so, at the time of the mother’s removal of the children, the case for an order for the return of the children would have been irresistible.

However, the father's delay for almost a year in pursuing his Convention rights has meant that, for well over a year now, the children have lived, been educated and made friends in England and are settled in schools where they are happy and successful. Whilst this cannot be advanced as a “settlement” case under article 12, it is clear that, in a case of child’s objections, unexplained and unexcused delay on the part of an applicant may be treated as a substantial factor in the exercise of the discretion whether or not to make an order for return: see Re S (Child Abduction: Delay) [1998] 1 FLR 659H. It is also to be noted that, so far as the children’s school is concerned, the mother has earned recognition for her helpful attitude as opposed to the condemnation of her interference and regular complaints when the children were being educated at school in Poland. On that basis, in so far as the Polish court had concerns over the children’s educational progress and relationships with their peers, the grounds for such concern appear to have been resolved by the move to England, albeit the Polish court’s concerns for the father’s contact rights and the perceived need of the children for a relationship with their father have been frustrated.

Miss Taylor, for the mother, has urged upon me four reasons why, having taken the decision that a potential child’s objections defence has been established, I should exercise my discretion to decline an order for return. The first is that, although an Article 12 “settlement” defence is not available, because of the unexplained delay in the father’s application the children have effectively settled with success into their English school and new circle of friends. They are happy and doing well in England, whereas they were unhappy and a source of psychological concern in Poland. It would be damaging to disturb that position, particularly in relation to their education, for the reasons outlined by me above. Second, Miss Taylor urges me to accept that the father knew that a move abroad was contemplated and did nothing to prevent it. Third, there were economic factors governing the mother’s move which were in substantial part due to the father’s failure to fulfil his maintenance obligations; the move of the mother was designed to ameliorate the position. Fourth, there is a risk of the children running away if an order for their return is made. I shall deal with the first reason last.

As to Miss Taylor’s second reason, while I am suspicious of the father’s failure to address the assertion of the children to Miss Weydert that he knew a move to England was contemplated, I am not confident that he was in fact so aware. The mother certainly did not to tell him, but only instructed her solicitor to inform the Court of her address after her departure As to the third reason, it does indeed appear that the father was in breach of his obligations of maintenance. That does not of course justify the change of residence by the mother without consulting the father or making an application to the Polish court in the absence of agreement, but it contributed to the strong economic reasons for her move to England where she has the opportunity to earn far more as a dentist in order to support the family. However, while she was apparently having some difficulty financially in Poland, there is no sufficient evidence that she could not manage and, again, she could and should have had resort to the Polish court. So far as the fourth reason is concerned, I do not doubt the sincerity of the children’s assertion that they would contemplate running away if an order for return is made. Nor do I doubt that such assertion emphasises their preference for life in England. However, while I consider that they would be deeply distressed to be ordered back to Poland I do not think that they would in fact run away as they have threatened.

I return to the first, and by far the weightiest, welfare consideration. It is plain that the period since the children’s removal has been a critical 14 months in their lives and their development for the reasons summarised by me at paragraph 73 above. They are now old enough to have formed their own firm views and have valid reasons for their objections to return to Poland quite independently of their mother’s views. It appears that their very considerable psychological and educational difficulties in Poland have been happily resolved by their move to England, and the period over which their objections to return have developed and hardened are in large measure the product of the father’s unexplained delay in pursuing his Convention remedy. In those circumstances, in the exercise of the discretion afforded to me under Article 13, I decline to make an order for the return of the children to Poland.

In reaching this decision, I have not lost sight of the provisions of Article 11 of Brussels 2 Revised and the fact that, were it not for the children’s objections, the Polish court would plainly be the appropriate forum in which to decide the future of the children so far as their father’s rights of access are concerned. The order I propose to make, is in no way a reflection upon the careful attention given to this case by the Polish Court. However, as I have made clear, my decision is based upon my conclusion that for these intelligent children, whose views must carry increasing weight with their increasing age, matters have significantly changed for the better since the matter was last before the Polish court and there are strong welfare grounds not to order their return. To make such an order would be to uproot, contrary to their wishes and objections, from a situation of happiness, security and educational progress over the last 14 months and to return them to a place and general situation where it is clear that they felt unhappy, emotionally disturbed and unable properly to relate to their peers. That being so, I propose to order dismissal of the father’s originating summons.