Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
MRS JUSTICE THEIS DBE
Between:
D | Applicant |
- and - | |
N | First Defendant |
- and - | |
D (By her Guardian ad Litem,) | Second Defendant |
Mr Christopher Hames (instructed by Brethertons Solicitors) for the Applicant
Ms Gill Honeyman Cafcass Legal for the Second Defendant
Hearing dates: 25th February 2011
JUDGMENT (Anonymised)
This judgment is being handed down in private on 7th March 2101. It consists of 14 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates and their solicitors may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved
Mrs Justice Theis DBE:
This matter concerns D (dob.06) a girl now 4 ½ years of age. Her parents are D and N, who I shall refer to in this judgment respectively as the father and mother. I am concerned with the father’s application for an order for the return of the child to this jurisdiction pursuant to Article 11 (8) of Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters of Parental Responsibility (hereafter ‘BIIR’).
The child is currently in the care of her mother in Poland. She has been there since April 2010 when the mother wrongfully retained her there. Prior to that the parties had lived and were habitually resident in England.
On 26th May 2010 the father sought the child’s return to England, through Hague Proceedings commenced via the English central authority in the Polish Courts. The final hearing of that application took place on 30th July 2010. The Polish Court accepted that the child had been habitually resident in England and had been wrongfully retained but refused to order her return on Article 13b grounds.
The judgment delivered by the Polish Court was received in England on 20th September 2010. The father issued proceedings in this court on the 20th October 2010 seeking an order that the child be returned to this jurisdiction pursuant to Article 11 (6) – (8).
Background
The parties met over the internet in 2002 and met face to face with the father travelling to Poland in 2003. The father is a British Citizen and mother is a Polish Citizen.
From April 2004 until March 2010 the parties lived in a rented property inWiltshire, England. The child was born on 27th October 2006 in England..
On 20th March 2010 the parties travelled to Poland with the child for a proposed holiday with a return date of 11th April 2010. On 8th April 2010 the father discovered that the mother was registering the child for temporary residence in Poland against his wishes. On the 11th April 2010 (the end of the holiday) the mother refused to return to England with the child. The father returned alone.
On the 26th May 2010 proceedings under the Hague Convention were issued by the father via the English central authority seeking a return of his daughter to England. This was issued out of the Regional Court in Gorzow Wkip on 26th May. There was oral evidence and the hearing took place on 1st, 15th and 16th July with judgment being given on 30th July 2010. The Polish Court refused to return the child to England on the basis that the defence had been made out pursuant to Article 13b of the Convention and the court exercised its discretion to refuse the application for the child’s immediate return.
The mother issued proceedings in Poland seeking to limit the father’s parental responsibility. It is unclear when they were issued. The letter from the mother’s Polish lawyer states they were submitted in April 2010. The only document the father has been served with (by bailiff on 20th December) is a Petition for Limitation of Parental Authority dated 4th May 2010. He said he has not been served with anything since.
The father issued proceedings here on 20th October 2010 and following orders made by Mrs Justice Pauffley on the same day the proceedings were sent to the mother by DHL on 26th October 2010 and signed for by her the following day. The matter was listed for further directions on 10th November 2010 with a direction for the mother to attend that hearing. On 1st November 2010 Cafcass indicated they felt it was in the child’s best interests to be joined as a party.
On 10th November 2010 Mr Justice Charles approved the child being joined as a party to the proceedings and ordered a hearing on 17th December to be the hearing to consider summary return and contact. He also requested that the Official Solicitor do appoint an Advocate to the Court. This was done as the court had received a letter from the mother’s Polish lawyer Advocate Arkadiusz Bylinski dated 4th November 2010. That letter suggested that the proceedings here should be stayed pending determination by the Polish Courts of the mother’s application to limit the father’s parental responsibility, that documents should be translated for the mother and refers to a judgment of the District Court in Gorzow Wielkopolski of 16th September 2010 for the father to pay maintenance for the child from 26th April 2010 of 800 PLN per month.
The mother and her Polish lawyers received a translated version of the order and the father’s statement on 2nd December 2010.
On the 10th December 2010 the Guardian’s lawyer Ms Honeyman confirmed in a letter that the Guardian had had a brief conversation with the mother but the mother was not willing to engage with her.
On the 15th December the court sent to the father’s solicitors a copy of a letter from the mother’s polish lawyer Advocate Bylinski which the father’s solicitors responded to on 16th December 2010.
On 16th December 2010 the mother instructed TV Edwards to act for her within the English proceedings.
The hearing listed on 17th December was ineffective as no judge was available. I made detailed directions that had been agreed between the parties outside court, including setting the matter down for a three day hearing commencing on 11th April 2011. Although the mother was not present she was represented by solicitors and counsel who I am told were able to take instructions from the mother by telephone during the course of the day. That order provided for the matter to be heard on 31st January 2011, there was provision for the further filing of evidence, for the father to have contact with the child in Poland in early January and for the mother to travel to England with the child on 28th January so that the Guardian could meet with them and the child could see her father prior to the hearing on 31st January. The father gave various undertakings in the order to facilitate the mother and the child’s return and agreed to pay the sum of £650 as a contribution towards the cost of their travel. Mr Devereuxwas instructed on behalf of the Official Solicitor. He had circulated his skeleton argument in advance. As there was no issue taken on his legal submissions the appointment of the Advocate to the Court was discharged.
The father had contact with the child in Poland in early January in accordance with my order dated 17th December.
The father issued an application under the Children Act 1989 on 26th January 2011 seeking residence and/or contact with the child.
The mother’s solicitors sent a fax late on 27th January 2011 to state they had not resolved their legal aid difficulties but the mother was not going to be present at the hearing on 31st January as she had only received cleared funds from the father on 25th January, leaving insufficient time to attend the hearing on 31st January. In any event, the letter continued, both the mother and the child had had a fever for a week. If well enough the mother would be available by phone on the 31st January.
The mother was not present at the hearing before Mr Justice Coleridge on 31st January 2011, but was represented by counsel and solicitors. The order recorded the reasons for the mother’s non-attendance, directed the mother to file medical evidence as to her illness and directed the matter be adjourned for a further hearing on 21st February, with the mother and the child to travel to this jurisdiction on 17th February in readiness for the hearing on 21st February. Detailed directions were made concerning the father’s contact with the child.
On the 7th February the mother’s solicitors wrote to the father’s solicitor informing them that the Legal Services Commission would not extend the mother’s certificate on an emergency basis as she needed to provide financial documentation, which a later letter from the mother’s solicitors on 17th February confirmed the mother had not provided. In addition, the mother’s solicitor considered there had been a breakdown in the solicitor/client relationship and they will be no longer able to act for the mother. They confirmed they had sent the mother a list of expert solicitors who could act for her.
A letter dated 8th February was sent to this court by the mother’s Polish lawyer Advocate Bylinski. That letter suggests that the Polish Court should deal with any remaining issues and they sought a transfer of the proceedings to Poland pursuant to Article 15 BIIR. The father’s solicitors responded to this letter on 15th February.
On 17th February the mother’s solicitors wrote to the court to say they were without instructions and the mother did not have public funding to be represented at the hearing on 21st February.
The case was not reached on the 21st February and was adjourned to 25th February. The mother did not attend the hearing on 21st February or return back to the jurisdiction with the child on 17th February.
The matter was listed before me on 25th February. The mother did not attend and was not represented. In the Position Statement filed on behalf of the child Ms Honeyman set out details of the attempts by the Guardian to contact the mother. The Guardian has tried to speak to the mother on the telephone and has left messages. The Guardian received a text on 24th February from the mother which confirmed the mother and the child were still in Poland, she could not get any days off work and still ‘got a cold’. She was aware the case had not been reached on the 21st February. She asked that the Guardian conduct her enquiries in Poland and indicates that the child is saying she doesn’t want to go anywhere. She suggests that she is not using the number the Guardian has been using as she alleges the father has been sending abusive texts. She states she will continue with the Skype contact and refers to her Polish solicitor sending a letter to the court.
The Guardian tried to speak to the mother following this text but the mother was at work and unable to talk.
The Law
The refusal of the Polish Court to order a return triggers the provisions in Article 11(6) - (8).
Singer J considered these provisions in Re A, HA –v- MB [2008] 1 FLR 289 and gave guidance on their interpretation. In Re A both the parents and the child were represented, the parents gave oral evidence and a full welfare enquiry was undertaken hearing evidence and submissions over three days.
Singer J concluded that where an application is made pursuant to the provisions of Article 11(6-8) the court is exercising its original and complete jurisdiction which it had pursuant to the provisions of Article 8 of BIIR. Article 8 BIIR provides ‘The courts of a Member state shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member States at the time the court is seised.’ Thus the English Court is able to exercise any of the powers within the Children Act 1989 or in wardship that it would in any purely domestic case.
In M v T (Abduction: Brussels II Revised, Art 11 (7)) [2010] EWHC 1479 (Fam), [2010] 2 FLR 1685 the mother and the child were represented and the father appeared in person. Charles J conducted a full welfare enquiry, hearing oral evidence and submissions from the parties over the course of three days.
At paras [17], [18] and [20] at 1691 – 1692, Charles J said:
[17] “…As to the jurisdiction and role of the court, it seems to me: first, that what the court is not doing is carrying out an appeal process in respect of a decision of a foreign court or anything akin to that. Secondly, it seems to me that the court is not itself applying Art 13 or a Hague jurisdiction as such. Rather, it seems to me, that what the court is doing is exercising the jurisdiction it always held under Art 10 which is a welfare jurisdiction and, therefore, it is a welfare approach that has to be applied. Within that approach applying English law, there is the ability of the court to order a summary return of a child to another jurisdiction. So it seems to me that the court in exercising its welfare jurisdiction has the power to make a summary order under Art 11(7) in an appropriate case (see by analogy to the decision of the House of Lords in Re J (A Child: Custody Rights Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80, [2005] 3 WLR 14 sub nom J (Child Returned Abroad: Convention Rights) [2005] 2 FLR 802). In particular, I would draw attention to para [26] of the speech of Baroness Hale of Richmond in Re J which identifies that summary orders are within the jurisdiction of the court and from para [29] onwards where she deals with the factors to be taken into account by the court in making the choice as to whether or not to order a summary return or to embark upon a welfare inquiry.
[18] Necessarily, a summary return does not involve a full welfare inquiry or anything approaching it, albeit it that it is applying a welfare test. In the present context it would, however, inevitably involve an effective rejection or an effective refusal not to follow the decision of the foreign court not to return the child under Art 13, but that is inherent in Art 11(7) itself. It seems to me that cases could well arise for a variety of reasons in which this court may feel it appropriate to exercise its jurisdiction under Art 11(7) on a summary basis albeit applying a welfare test. There may, for example, be differences if the refusing court acted under Art 13a rather than 13b. In that context Art 11(4) may have some relevance.
[20] So it seems to me, given the existence of the power and jurisdiction to make a summary order and having regard to the history of this case and the lessons that could be learned from it, that as soon as possible after an application under Art 11(7) I issued, there should be directions from the court in which the court should expressly consider the approach that is to be taken to the case, namely: is the case to be determined on a summary basis and/or is there to be a welfare inquiry and, if so, what is to be the extent of that welfare inquiry and, therefore, what directions need to be made in that context? Also, importantly, at that first directions hearing or as soon as possible thereafter, the issue whether or not the child should be joined and, if so the representation of the child, should be determined.”
Therefore the court is exercising a paramount welfare jurisdiction.
There is nothing in the provisions in BIIR which indicates this jurisdiction is in some way restricted and that the court cannot order a summary or interim return of the child under Article 11 (8).
The Court of Justice of the European Union considered this in the case of Povse-v-Alpago C-211/10 [2010] 2 FLR 1343. The CJEU said
‘Consequently, the answer to the second question is that Article 11(8) of the regulation must be interpreted as meaning that a judgment of the court with jurisdiction ordering the return of the child falls within the scope of that provision, even if it is not preceded by a final judgment of that court relating to rights of custody of the child.’
The reasoning of the CJEU (as set out at paragraphs 51 – 67) is relevant as it covers some of the issues in this case; namely the preservation of the Father’s relationship with the child and the ability of the court properly to examine the case and to exercise its jurisdiction.
“61. Further, as the European Commission has correctly observed, the court which is ultimately responsible for determining rights of custody must have the power to determine all the interim arrangements and measures, including fixing the child’s place of residence, which might possibly require the return of the child.
62 The objective of the provisions of Articles 11(8), 40 and 42 of the regulation, namely, that proceedings be expeditious, and the priority given to the jurisdiction of the court of origin are scarcely compatible with an interpretation according to which a judgment ordering return must be preceded by a final judgment on rights of custody. Such an interpretation would constitute a constraint which might compel the court with jurisdiction to take a decision on rights of custody when it had neither all the information and all the material needed for that purpose, nor the time required to make an objective and dispassionate assessment.
63 As regards the argument that such an interpretation might lead to the child being moved needlessly, if the court with jurisdiction were ultimately to award custody to the parent residing in the Member State of removal, it must be stated that the importance of delivering a court judgment on the final custody of the child that is fair and soundly based, the need to deter child abduction, and the child’s right to maintain on a regular basis a personal relationship and direct contact with both parents, take precedence over any disadvantages which such moving might entail.
64 One of the fundamental rights of the child is the right, set out in Article 24(3) of the Charter of Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1), to maintain on a regular basis a personal relationship and direct contact with both parents, respect for that right undeniably merging into the best interests of any child (see Case C 403/09 PPU Detiček [2009] ECR I 0000, paragraph 54). It is clear that an unlawful removal of the child, following the taking of a unilateral decision by one of the child’s parents, more often than not deprives the child of the possibility of maintaining on a regular basis a personal relationship and direct contact with the other parent (see Detiček, paragraph 56).
65 Consideration of the situation at issue in the main proceeding again demonstrates the correctness of this approach.
66 The grounds for the judgment of 10 July 2009 whereby the court with jurisdiction ordered the return of the child were that the relationship between the child and her father had been broken. Consequently, it is in the child’s best interests to re establish that relationship and also to ensure, if possible, that the mother is in Italy, so that the relationship of the child with both parents, and the parental abilities and characters of the parents, can be examined thoroughly by the competent Italian authorities, prior to delivery of a final judgment on custody and parental responsibility.
67 Consequently, the answer to the second question is that Article 11(8) of the regulation must be interpreted as meaning that a judgment of the court with jurisdiction ordering the return of the child falls within the scope of that provision, even if it is not preceded by a final judgment of that court relating to rights of custody of the child.”
If this court decides to order the return of the child pursuant to Article 11(8) Section 4 of BIIR applies (see Article 40 (1) (b)). Article 42 (1) provides that a return of a child pursuant to Article 11(8) shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State or origin in accordance with paragraph 2.
Article 42 (2) provides that the judge of origin who delivered the judgment ordering a return pursuant to Article 11(8) shall issue the certificate referred to in paragraph (1) only if
The child was given an opportunity to be heard unless such was inappropriate.
The parties were given an opportunity to be heard
The court has considered the reasons for and evidence underlying the non-return decision.
I agree with the conclusions set out by Mr Devereux in his skeleton argument submitted to the court.
The position can be summarised as follows:
The interrelationship of Articles 10 and Articles 11(7) and (8) of BIIR permit the State of origin (from where the child has been wrongfully removed or retained to) to undertake an examination of the question of the custody of the child, once a judgment of non return pursuant to Article 13 has been made by a State where a request has been under the Hague Convention 1980;
Proceedings under Article 11(7) should be carried out as quickly as possible (M v T (Abduction: Brussels II Revised, Art 11(7)) at para [8] at 1689);
In undertaking the examination of the question of the custody of the child, the Judge should be in a position that he or she would have been in if the abducting parent had not abducted the child. Thus the whole range of orders that would normally available to a Judge should be available when examining the question of the custody of the child (Re A; HA v MB (Brussels II Revised: Art 11 (7) Application) at para [90]; M v T (Abduction: Brussels II Revised, Art 11(7)) at para [17] at 1691 – 1692);
In undertaking the examination of the question of the custody of the child, the court exercises a welfare jurisdiction: the child’s welfare shall be the court’s paramount consideration (section 1(1) of the Children Act 1989; Re A; HA v MB (Brussels II Revised: Art 11 (7) Application); M v T (Abduction: Brussels II Revised, Art 11(7)) at para [17] at 1691 – 1692);
It may not be necessary or appropriate to categorise the jurisdictional foundation for such an enquiry as deriving from, or relying upon, the inherent jurisdiction. The foundation for any examination of the question of the custody of the child is simply through the gateway of Article 11(7);
The court has a well known and historic ability to order the summary return of a child to and from another jurisdiction;
As part of the court’s enquiry under Article 11(7) the court does have the ability to order a summary return of the child to this country to facilitate the decision making process leading to a final judgment (M v T (Abduction: Brussels II Revised, Art 11(7)) at para [17] at 1692; Povse v Alpago Case C-211/10 [2010] 2 FLR 1343);
In deciding whether to order a summary return or to carry out a full welfare enquiry, the court exercises a welfare jurisdiction. (M v T (Abduction: Brussels II Revised, Art 11(7) at para [17] at 1692). It is not altogether clear whether the decision to order a return of the child on a summary basis is more appropriately considered as akin to that which might be ordered under the inherent jurisdiction or whether it is effectively a specific issue order under the Children Act 1989 order: if it is more appropriately considered as akin to the inherent jurisdiction then – at least as to the question of summary return – it may not be necessary for the court mechanistically and slavishly to direct itself to the welfare checklist; that having been said, once the child has returned and the court is considering what order to make the court should direct itself to the welfare checklist;
Any summary return order is directly enforceable through the procedures in BIIR (see, Article 42 and Article 47 of BIIR, Povse v Alpago (supra)).
On the evidence I have seenthe mother accepted this court has exclusive jurisdiction. As a matter of law there can, in my judgment, be no basis for a challenge to that. Article 8 is mandatory in its terms and the child’s habitual residence was clearly in England at the time these proceedings were issued by the father. In her statement (served on 17th January 2011) the mother refers to her willingness to engage with this court (paragraphs 3 and 5) and the need to issue an application for leave to remove the child from this jurisdiction (paragraph 56).
The child’s welfare
Having established that this court has jurisdiction by virtue of Articles 8, 10, 11 (6) – (8) to consider the father’s application for an order for the summary return of the child and that such an order can be made prior to a final determination I now turn to consider whether such an order is in the child’s best interests and whether I should issue a certificate pursuant to Article 42 (2).
The judgment of the Polish Court is in the papers. The decision to refuse a return was based on Article 13 b of the Convention. The factual basis of the finding was:
the risks posed by the father’s alleged excess consumption of alcohol
an absence of secure provision of the ‘necessities’ of life in England
a return to the father’s care and/or England would be contrary to the child’s wishes. This appears to be based on the mother indicating she would not return.
There is no reference in the Polish Court decision to any consideration of the provisions of Article 11 (4) which provides ‘A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.’
In these proceedings the father was directed to file evidence which dealt with the reasons on which the refusal to return was based and set out his proposals for a return.
The mother’s statement in these proceedings repeats the allegations she made regarding the father in the proceedings before the Polish Court.
The father’s statement in response provides some evidence that supports his position regarding the level of his alcohol intake and he makes admissions regarding a limited number of occasions when he has behaved poorly. He sets out in this statement the further undertakings he offers in the event that the child is to return.
It is submitted on behalf of the father that on closer examination of the evidence the reasons for refusal given by the Polish Court do not stand up to close scrutiny and regard needs to be had to the protective measures that would be available through the father’s undertakings and the protection offered by Social Services, the courts and the police.
In relation to the alcohol related risks it is said the alleged incidents are relatively old (dating back to 2008) are relatively general in nature and the extent of the drinking is not as extensive as alleged. In November 2009 the letter from the GP records the father’s liver function tests were normal and did not indicate any liver damage. The more recent hair strand tests record a negative finding for the period October 20101 to January 2011.
The evidence points to the father having a significant role in the child’s care prior to her retention in Poland. The father was not working and was in receipt of incapacity benefit. The mother was working four days per week and no outside agency was concerned about the care of the child.
The other incidents complained of are denied by the father. He has offered undertakings that would ensure the mother and the child are housed and that the child would not be removed from her mother’s care pending the next court hearing. Whilst the mother has expressed reservations about returning to the former family home in the short term that would provide suitable accommodation for the mother and the child whilst the welfare enquiry is undertaken.
The circumstances in which the child’s wishes have been obtained give cause for concern. She was 3 years 8 months at the time she was interviewed. Her views as to where and with whom she would want to live should be of limited weight.
If the child remains in Poland the father submits that
His relationship with the child will be unduly restricted and he and the child will be denied regular ands meaningful contact. Both the father’s and the child’s rights under Article 8 EHCR are engaged.
The father’s ability to properly present a case for either sole or shared care of the child is severely restricted as they cannot maintain their relationship and the court cannot properly assess his ability to be the child’s carer either on a shared or sole basis.
A new status quo will develop which will almost inevitably result in the mother becoming the child’s long term primary carer and the relationship between the child and her father being limited.
The mother has not facilitated contact previously and has not properly engaged in these proceedings to date resulting in considerable delay.
The father seeks an order that the child is to return to this jurisdiction in seven days.
No submissions were made on behalf of the mother but I have considered her statement filed in these proceedings and the letters from her Polish lawyer Advocate Bylinski.
Due to the lack of information that the Guardian has Ms Honeyman, on behalf of the child, is unable to make any positive submissions one way or the other as to the order being sought on behalf of the father. She does not disagree with the legal analysis set out above as to the court’s jurisdiction.
Ms Honeyman did inform the court that whatever decision the court came to the Guardian was probably going to undertake a trip to Poland as part of her investigations. Due to her commitments on other cases that trip is likely to be around the 31st March/1st April for a couple of days.
I have considered the arguments canvassed before me in the written material and during the hearing. I have come to the conclusion that on the information I have the child’s welfare is best met by an order that she return to this country by the 6th April 2011. I have reached that conclusion for the following reasons:
To enable this court to undertake a proper welfare enquiry at the hearing listed to commence on 11th April to consider what orders should be made for the future care of the child the court needs the father to have an opportunity to spend some time with the child in this jurisdiction and for that to be assessed by the Guardian.
Both parties in this case have very limited means which have an impact on the realistic options available to the court.
By allowing some extra time before the return order is effective will enable the mother to make suitable arrangements with her employer to take time off.
On the information I have seen it is more likely than not that the mother will accompany the child to this jurisdiction. It would be in the child’s interests if she did. That is what she indicated in her statement (paragraph 56) and it gives sufficient time to make practical arrangements that will make it easier for her to do so.
If the mother doesn’t plan to accompany the child the short delay will give the father sufficient time to make the necessary arrangements to accompany the child back to this country. The father is having some Skype contact with the child, she saw him in January and he will see her when the Guardian travels to Poland.
The order will take effect after the Guardian has visited Poland. As indicated during the hearing arrangements need to be made for the father to go out to Poland at the same time as the Guardian to see the child and I will make such orders as are necessary to ensure the contact takes place during that visit.
By structuring the order in the way that I have it will enable the Guardian to see the child in Poland with her mother and father and for the same to happen in this jurisdiction.
The concerns raised by the mother regarding the father’s behaviour and the consequent risks are manageable due to the following factors: (i) the undertakings that the father offers (ii) the mother would have access to legal representation in this country (iii) the child is separately represented within these proceedings (iv) the spotlight of the court is on this family which will act as a deterrent and thereby reduce the risks the mother is concerned about regarding the father’s behaviour.
I have not required the father to pay any further sums of money. He paid the sum of £650 on 25th January to the mother for the purposes of funding the travel expenses for the mother and the child back to this jurisdiction. That money is still available to the mother for the purpose for which it was intended.
I have balanced the fact that the date for the child’s return to this country is very close to the three day hearing listed to commence on 11th April with the fact that if I ordered her return significantly before then it may prompt an application by the mother to return with the child to Poland pending the hearing and then to return back for the hearing in April. In addition it is important as part of the welfare enquiry for the mother, father and the child to be seen in Poland. Whether the court will be able to make final orders at the hearing in April will depend on the information that is available. I will direct that the mother and father do file statements setting out their plans for the future care of the child.
By ordering the child’s return when I have it is more likely that the mother will be present for the hearing in April and participate in that hearing which will be in the child’s interests.
I have as a guide considered the welfare checklist in section 1 (3) of the Children Act 1989 in reaching my decision and in particular the physical and emotional needs of the child, the likely effect of any change in circumstances, any harm she is at risk of suffering, the capability of each of the parents to meet her needs and the range of orders the court can make.
Having decided to make the order for the child’s return to this jurisdiction pursuant to Article 11 (8) I need to consider whether I should issue a certificate pursuant to Article 42 (2). In considering whether to do so I need to consider the matters set out in Article 42 (2), taking each of them in turn:
the child was given an opportunity to be heard unless such was inappropriate
The child is 4 years old. Her views as ascertained in Poland are unlikely to have changed. She will be closely aligned to her primary carer. The Guardian had sought the opportunity to obtain the child’s views but the mother declined to co-operate. The mother’s obstruction cannot give a ground for saying the requirement is not met. In determining when the order should take effect I have ensured the Guardian will have the opportunity to see the child in Poland first and given sufficient time for the mother to arrange to accompany the child back to England.
the parties were given an opportunity to be heard
The Mother has been in possession of the papers since 27th October and she had solicitors acting on her behalf from 16th December 2010 until early February 2011. Those solicitors endeavoured to keep in contact with the mother, that she failed to respond to and she failed to comply with the necessary requests that would continue her public funding. She has been sent details of alternative expert solicitors and has engaged Polish lawyers. She was aware of this hearing and has had the opportunity to be heard.
The court has considered the reasons for and evidence underlying the non-return decision.
I have considered the judgment of the Polish Court dated 30th July 2010 and the reasons for and the evidence underlying the non-return decision. The father has set out his response to the reasons for the non-return decision in these proceedings. This evidence has been considered together with the following matters: (i) the undertakings the father has offered; (ii) the mother has access to legal advice and representation within this jurisdiction; (iii) The child is represented within these proceedings; (iv) the spotlight of the court will be on the family; (v) the protection offered by the courts, social services and the police.
Having considered the matters set out in Article 42 (2) as set out above I have decided to issue the certificate in Annex IV.
Advocate Bylinski in his letter dated 8th February invites the court to transfer the proceedings to the Polish Court pursuant to Article 15. Although there is no formal application made the court can consider a transfer under Article 15 of the court’s own motion. I do not consider that such a transfer should be made at this stage as the child’s immediate connection with Poland has been brought about by the mother’s wrongful retention of the child there, it would not be a better place to hear the case as the father would have difficulty in participating in a full welfare enquiry there due to his financial circumstances which would not be in the child’s best interests. This matter can be considered again, if required, at the hearing in April.
Following circulation of the draft judgment Ms Honeyman informed the court that the Guardian is now able to complete her trip to Poland by 28th March 2011. In those circumstances I have reconsidered the date for the child’s return to this jurisdiction and in the light of the Guardian being able to complete her enquiries in Poland earlier the date for the child’s return will be 30th March 2011. In addition the court has been able to accommodate a short delay in the commencement of the hearing in April so that it can now start on 13th April. These adjustments will allow more time for the Guardian to conduct her welfare enquiries in this jurisdiction.