R v D

On 30^th November, a court in Poland in the Wroclaw-Krzyki District Court rejected an application by a father for an order under the Hague Child Abduction Convention for the summary return to this country of his son, C, following his wrongful retention in Poland by his mother. The father now applies to this court for an order for C’s return to England. His application is made under the provisions of Article 11(7) and (8) of the Council Regulation (EC) 2201/2203 (commonly called “Brussels IIa”). The application is opposed by his mother.

The father appears represented by Aidan Vine QC. The mother has represented herself in person. English is not her first language, but she has put before the court her arguments clearly and I have had no difficulty understanding her arguments nor has she had any difficulty understanding the process, thanks in no small part to the careful contribution of Mr Vine in the exposition of his case.

The background to the case can be summarised as follows. C was born on 28^th April 2010 and therefore had his sixth birthday earlier this week. The parties lived together until June 2014, when they separated. They initially continued to live together in the house, but finally separated completely in the latter part of 2014 when the mother moved out of the family home.

There is a history of disagreement between the parties. There have been a number of tensions and some incidents, including, it is said, some incidents when the police have been called. I am not in a position to make any findings about the truth of those matters. They may have to be investigated in due course in court.

Initially, the parties, following separation, entered into a shared care arrangement. C’s time was divided almost equally between mother and father. There is no reason for this court to believe that this arrangement caused C any particular difficulty, although the mother was unhappy about the arrangements and continues to have some complaints about whether it was the right solution for C. At any rate, that was clearly the arrangement for C’s care until August 2015.

On 16^th August, the mother and C went to Poland, the mother’s home country. She has lived in this country for 12 years but she has gone back to Poland on a number of occasions with C in the course of his life and up to this point there had been no difficulties. Previously, C and the mother returned at the conclusion of each holiday. However, on this occasion that did not happen. They went for a holiday for some eight days. That was the agreement between the parties although C’s father has alleged that he only consented under duress. I have not had an opportunity to investigate that in any detail in this hearing.

On arrival in Poland, shortly afterwards, within a few days, the mother consulted a lawyer in Poland. Five days after her arrival, on 21^st August, an application was made to the district court in Poland for an order restricting the father’s parental responsibility. A translation of the application has been put before this court. It clearly states, inter alia, that the mother was seeking to remain in Poland indefinitely. Specifically, the translated application contains these words:

“By filing this petition, the petitioner does not intend to permanently separate her son [C] from his father and is willing to provide the minor son with contact with his father to the largest possible extent while she considers that it would be favourable for the minor son [C] to be brought up and educated in Poland.”

On the day that C was due to return to this country, the mother sent the father a text message saying that she would not be flying back that day because she was unwell. Thereafter, according to the father, he repeatedly tried to contact the mother by text message and other means but received no response.

On 27^th August, he contacted the police, informing them that the mother and C had not returned. On that day, the mother sent the father an email in these terms:

“Sorry for late response. While I was ill, having the support of my family made me think whether me and C shouldn’t stay here for some time. Maybe that would work best for all of us? Me and you need to catch some distance as our relationship has a bad influence on [C]. Please don’t get upset. I am thinking of [C’s] wellbeing, he could go to school here for now and I'm sure he would love it as he speaks Polish better and better each day. Please consider this seriously for our sake. If you could come and visit for a few days, we could properly talk this through. Please let me know what you think. Thank you.”

It is the mother’s case that the father never responded to that email. The mother has indicated that she regarded that as the father consenting to that proposal. Manifestly, however, the father said nothing to consent to that proposal nor, in my judgment, has he ever done anything to indicate tacit acquiescence in it.

On the contrary, on 10^th September, less than three weeks later, he applied, via the central authority in this country, under the Hague Convention for an order for C’s summary return to this country. In addition, proceedings were started in this country in wardship.

The matter came before His Honour Judge Marston, sitting here in Bristol, on 29^th October when the learned judge made an order declaring that C was habitually resident in this country; that the courts of England and Wales are the appropriate courts to exercise jurisdiction with regard to his welfare; C was made a ward of court during his minority or until further order; the mother was ordered to return C to this country forthwith; and further directions were given to facilitate that return.

The mother’s application (which I have already referred to) to the Polish district court was, by order of that court on 6^th November, suspended pending determination of the father’s application for summary return. That application came before the district court on 18^th November. Both parents were present and represented at the hearing. Oral evidence was heard. The mother’s case, it seems, was that she accepted that the child had been wrongfully abducted but sought to persuade the court that an order for summary return should not be made, relying on the defence in Article 13(b) of the Hague Convention, namely that there was a grave risk that C’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation. The district court in Poland adjourned the application to enable a psychological assessment to be carried out.

I have the advantage of a translated transcript of proceedings before the district court. It is clear from that transcript that both parties gave evidence and the mother in her evidence said, amongst other things: “I don’t have any chance of getting custody of my son in Great Britain therefore I didn't apply for it there.” She further made a number of assertions about the life of the family prior to the departure in August. She said: “I don’t have the applicant’s consent for the child’s stay in Poland.” Asked to identify the “great emotional harm” that she said he would suffer were he to return to England, she alleged that C did not have good memories for the time he lived in England, that he was much better off in Poland. She listed his various activities. She described him as bilingual now. She indicated to the Polish court that she would not return to England were the court to order C’s summary return. Thus, it seems the case put before the Polish court was that C would be returned to England without her.

The Polish court, as I have said, adjourned the application for a psychological assessment to be carried, and that assessment was duly carried out. The psychologist interviewed the mother and C and observed them together, but significantly did not speak to the father. The conclusion of the assessment was that C wanted to live with his mother in Poland and see his father in school holidays. The psychologist described the mother as C’s main carer and reiterated that the mother did not intend to return to England were the court to make a summary return order. The psychologist advised that to remove C from Poland and separate him from his mother could expose him to psychological harm.

The matter came back for final submissions and judgment before the district court on 30^th November. On that occasion, the court gave its decision, which is, to all intents and purposes, a judgment. The court specified the facts as it found them to be. It concluded that C had been wrongfully removed within the terms of the Convention under Article 3. It noted that there had been in effect a shared care arrangement - the precise words are: “The father looked after the child by taking turns with the child’s mother and these rights were effectively exercised by the father.” Consequently, the court found that C should be returned unless one of the defences under the Convention was proved.

As to that, the court recited the opinion of the psychological expert and reached this conclusion:

“In the court’s opinion, the child wasn’t provided with a sense of security and stable living conditions in the territory of Great Britain. Furthermore, it should be noted, from the interview with the father as well as from the expert’s opinion, it appears the child didn't have any strong relationships with peers in England. His colleagues weren't invited to the child’s home. The child did show that the father was important for him. However, the court didn't have any doubts as to the emotional bonds between the child and the parents. However, it should be noted that, as per the outcome of the assessment, at the current state of the child’s mental development, his change of place of residence and separation from his mother could expose him to psychological harm and put him in an intolerable situation.”

As a result, the district court concluded that the defence under Article 13(b) was made out and refused to order the child’s return.

Although that was the court’s decision, it seems that there was a delay in a translation of the judgment being received and it was not until 13^th February of this year that the father made this application for further directions and for a return order under Article 11(7) and (8) of Brussels IIa. That application was referred to me and a telephone hearing took place before me on 15^th March, attended by the mother from Poland. At the conclusion of that hearing, I made an order repeating the declaration that C was habitually resident in this country. I gave directions for the parties to file statements and listed the father’s application for an order for return under Articles 11(7) and (8) to be heard by me today. The parties both agreed at that hearing – rightly, in my view – that, in all the circumstances including his age, C should not be joined as a party to the proceedings. In other words, neither party has sought to take any formal steps for C to be heard in this application before me today. The parties duly filed statements and a supplemental statement was subsequently filed by the father to deal with certain matters of history and the history of the relationship set out in the mother’s statement. In the event, I do not consider those matters to be of particular relevance to the decision I have to make today.

The father’s case, as advanced by Mr Vine, is that I should make an order for C’s summary return to this country today. Ideally the father would seek a final order that C be returned to this country, but Mr Vine realistically accepted that the alternative course was one which the court was more likely to follow, namely that there should be a short-term, interim order today. In that context, Mr Vine’s alternative submission was that I should order the interim summary return of C to this country pending a final hearing, to take place in due course once further assessments had been carried out.

The mother’s case is that I should not order C’s return to this country at this stage; that C should remain in Poland and that any decisions by this court should be conducted at a final hearing after assessments have been carried out, on the basis that, in the interim, C should remain where he is in Poland.

Both parties accept, as I understand it, that this court has jurisdiction, as it plainly does under Brussels IIa. Furthermore, both parties, despite their polarised positions, acknowledge that whichever order I make, so far as the interim position is concerned, there should be significant face-to-face contact with the other parent. Hitherto, in the last eight months, the father has had some contact in Poland and some Skype contact with his son. But C has not been back to this country for eight months, and the mother accepts that, were I to permit C to remain in Poland in the next few months later, that he should have face-to-face contact with his father not only in Poland but also in this country. Equally, the father accepts that, were I to make an order that C return to this country in the interim, that the mother should have contact with C not only in this country but also in Poland for a period during the holidays.

The law to be applied by the court in these circumstances is helpfully set out in considerable detail by Mr Vine. In view of the lateness of the hour (it being 5.35 on Friday evening), I do not think it proportionate or necessary for me to set out the law in any detail. Consequently, I record that I have in mind the various international legal instruments that I have to apply, in particular, of course, the provisions of Article 11 of Brussels IIa, which is the focus of the application today; also the relevant provisions of the Hague Child Abduction Convention; and also Article 8 of the European Human Rights Convention.

The case law in respect of applications under Article 11 has been put before me. Mr Vine has reminded me of the decision of the European Court of Justice in the case of Povse v Alpago [2010] 2 FLR 1343. He draws attention in particular to paragraph 83 of that judgment. He also cites the recent decision of the European Court of Human Rights in KJ v Poland, which he submits consists of a case factually very similar to the present case, in which the European Court of Human Rights declared that a decision by the Polish court to refuse to return a child on grounds of the Article 13(b) defence was held to be an infringement of the unsuccessful party’s Article 8 rights. I do see similarities between the facts of that case and the case before me but to my mind that authority is not of any particular relevance to the decision I have to make today.

More relevant perhaps are the reported cases in this jurisdiction on the application of Article 11(7) and (8). Mr Vine contends that the law is summarised appropriately by me in the decision in Re AJ (Brussels II Revised) [2011] EWHC 3450 (Fam). Mr Vine has reminded me of what I said on that occasion, and in particular paragraph 29 of the judgment in which I quoted with approval a passage from the earlier judgment of Theis J in the case of D v N and D [2011] EWHC 471. He further draws my attention to the summary of the legal principles which I uttered at paragraph 35. There I said:

“I therefore reach the following conclusions as to jurisdiction in this case:

(1)

This court has jurisdiction because it was seised prior to the non-return order of the Polish court and the court is therefore under no obligation to ‘close the case’.

(2)

If I am mistaken about that, it continues to have jurisdiction by reason of the application made by the father pursuant to Article 11(7).

(3)

In either case, the jurisdiction continues because the court has made no final order.

(4) Whatever the basis for the jurisdiction, it is a jurisdiction in which the child's welfare is paramount and the court has all the powers available under domestic law.

(5)

The court has the power under its welfare jurisdiction to order a summary return to England if it thinks that it falls to be in his best interests.”

Mr Vine submitted that arguably some degree of caution should be applied when considering those last words and, on reflection, I think it probably would be better expressed in these terms:

“The court has the power under its welfare jurisdiction to order a summary return of a child to England under Article 11(7) in these circumstances if it thinks such a course to be in the overall interests of his welfare.”

The allusion to “best interests” arises because of the use of that phrase in the preamble to the Brussels IIa Regulation, and in particular to paragraph 12. But that, in my judgment, goes to the question of jurisdiction rather than to the approach to be taken by the court when exercising jurisdiction.

The scheme of the Regulation, in short, is this. Where a court to which a child has been abducted within the European Union has determined that the child should not be returned, having been satisfied that a defence under the Hague Convention is made out, the court of habitual residence retains jurisdiction to make decisions as to the child’s future in accordance with the provisions of Article 11 of the Regulation. In exercising that jurisdiction, it is a welfare jurisdiction and the court must only make decisions in accordance with what it conceives to be in the interests of the child’s welfare. That applies, in my judgment, to applications such as this for the summary return of the child as well as to long-term decisions. The court of habitual residence retains jurisdiction to make decisions as to the child’s welfare notwithstanding an order for non-return by the courts of the country to which the child was abducted. In exercising that jurisdiction, this court applies the principle that the child's welfare is the paramount consideration. That applies to all applications and all matters arising under the welfare jurisdiction including an application for the child's summary return.

Mr Vine, as I understand his submissions, did not demur from that position but submits (and, in my view, rightly submits) that, in carrying out that welfare evaluation, the court must take into account both the circumstances and fact of the child's abduction and also the policy considerations which underpin the international instruments which are directed at child abduction. Child abduction is contrary to the welfare of children generally and this abduction has been contrary to the welfare of this child. That is a factor which the court must take into account when carrying out its welfare evaluation.

Both parents gave oral evidence before me and covered a number of issues. But I tried to focus their evidence on the question of the short term: what should happen to this little boy in the next few months until a final decision is taken. I have not looked at the history. I have not looked at the circumstances of the abduction in any great detail. I have tried to focus on what is going to happen in the immediate next few months. That is the decision I am making today.

In her oral evidence, the mother stated, in an important change of position that, if this court were to order C’s return to this country, she would, albeit reluctantly, return with him. Such an eventuality would, she said, cause her difficulties. I accept that it would. She said it would cause her financial difficulties, because in the eight months or so when she has been living in Poland again she has started a business which is just growing, she has put money into it and it is just getting going. I accept that she would face challenges managing that business over the next few months were she to return to this country following an order that C should return. I also accept that she might find difficulties getting employment here in the short term, and acknowledge her concern about being forced to resort to benefits. She expressed strong views about how she did not want to be back on benefits which apparently was the position at an earlier stage. Nonetheless she was clear in telling this court that reluctantly she would return to this country with C were I to order C’s return today.

That is to my mind an important change of circumstances from the state of affairs that existed before the district court in Poland. As I have indicated, the fact that the mother was refusing to return with C, so that a return for C to this country would involve a separation from his mother, was regarded by the Polish court as an important component and a decisive factor in its decision that to order his return would expose C to a grave risk of harm. As a result, this court is in a different position from that of the Polish court. When the Polish court was faced with the prospect of separating C from his mother, it ruled that C would be at a grave risk of harm. I consider this to be a significant change of position: that risk of harm is no longer present and no longer a factor for me to consider.

In reaching my decision, it seems to me the key arguments on each side are as follows. I start with the arguments in favour of C remaining in Poland. First, C has lived in Poland now for eight months and is relatively settled there. The mother describes in her statement and in her oral evidence details of how he has settled down there. He is enjoying life in preschool. He has made friends. He is bilingual so he is able to participate in activities there. He has a lot of family there to whom he is close. The mother is living at the moment with her sister, who has kindly sat with her in court providing support today. There is one cousin living in the house and a dog, and C clearly enjoys life there. I accept that he is settled and it is to an advantage for him to be with his family.

Secondly, it follows that there would therefore be a significant disruption for C were he to be ordered to come back to this country now. It is only eight months since he has been away but I accept he has settled and there would be an element of disruption.

Thirdly, if I finally order at the conclusion of these proceedings in a few months’ time that C should go back to Poland - in other words, if the mother persuades me that the right course is for C to go back to Poland - ordering to come back now and then to go back to Poland would involve two moves for C and therefore two experiences of disruption. Albeit that his stay in Poland has come about as a result of a wrongful abduction, there is a status quo which has been established over the last eight months which would be disrupted, and I have to consider the impact of a change of circumstances as part of my welfare assessment.

Fourthly, I take into account, as I have already described, that were C to come to this country with his mother it would involve considerable disruption to her: first of all, the difficulties financially and with her business which I have described; and secondly, it would also involve, as I accept, an emotional and psychological disruption for her. Having heard her give evidence, it is manifestly clear that she would be very distressed (and is distressed) at the prospect of having to come back to this country. That is likely to have, in my view, some adverse impact. Both of those factors – the financial difficulties and the emotional difficulties the mother will face – will have some knock-on effect on C.

On the other hand, there are a number of factors which are in favour of ordering his return to this country. First, C would be returning not by himself (as it seemed at the time of the hearing before the Polish court) but with his mother. A return would therefore enable C to resume the shared care arrangements from which he was uprooted in August. In particular, it would enable him to resume a close relationship with his father. I accept that he has been able to see his father. Unlike many cases of abduction, there has been contact over the last eight months (I think four visits) and some Skype. But that is nothing like the level of contact and involvement which this father was having with his son prior to the wrongful abduction. Ordering C’s return to this country would enable that relationship to be resumed at the level it was. That, in my view, is an extremely important factor.

Secondly, a return to this country would facilitate what I regard as a thorough and fair assessment of the competing cases these parents are putting forward for his long-term future. The mother wants C to live in Poland permanently; the father wants him to remain in this country. That is a difficult decision and a court would need the best evidence and a full and fair assessment of what is the right option. In my judgment, that can be achieved if he is returned to this country.

Thirdly, C would be returning to circumstances with which he is familiar. It is not as if he would be placed in an environment with which he had no experience; he is coming to a home that he knows.

Fourthly, although he would be separated from friends and family in Poland, he would be coming back to see friends and family in this country. In my view, the effect of separating him from his friends and family in Poland could be ameliorated by arrangements for staying contact in the summer, as the father concedes should happen.

Finally, the court is faced with the fact that this child has been unlawfully abducted. The mother, although she seems to have accepted that before the Polish court, was very reluctant to accept it in her evidence to me. Indeed, if I may say so with respect, she seemed to hold the position – that he was not abducted – in the teeth of the evidence. Abduction is contrary to the interests of children generally. C has suffered harm as a result of his abduction by being removed without warning from his close relationship with his father and his home life in this country. The reason why dozens of countries from all over the world have signed the Hague Convention, and more countries are joining the Hague Convention every year, is because it is recognised that child abduction is pernicious and damaging to children. It is damaging to children generally and it has been damaging to this child in particular. The mother says that the father can go to see C in Poland or even live in Poland. That may be a long-term option but that is not something, in my judgment, which is at all feasible today. It is the mother who is to blame for the fact that we are where we are because she acted wrongfully in removing C in the way that she did and not returning him at the conclusion of the holiday last summer. As a result, C has suffered the harm of being separated from his father which is a factor that I must take into account in assessing where his welfare lies.

It is, in my judgment, in the interests of C’s welfare that this court tries to put that right. That is consistent with the policies underpinning the Convention and Brussels IIa. It is also, most importantly, consistent with C’s welfare. In the long term, the mother wants to apply for permission for C to live in Poland. She appears to have told the Polish court that she had no chance of getting custody before a British court. Let me say categorically to both parents – and let there be no doubt about this – that the mother does have a chance of persuading me in the long run that she should take C to Poland. Whatever order I make today, I am not making a decision about the long term. Both parents have a great deal to offer this little boy. I – or another judge – will have to have to make the stark decision as to which is the right option in the long term. I tell the mother straight that she does have a chance in the long run of getting an order which permits her to take C to Poland.

But that is for another day. In my judgment, balancing the factors in the short term together, I have come to the clear conclusion that C’s welfare requires that he be returned to this country in the next few months.

Having made that decision I make these further observations. First, Mr Vine has drafted an order which he put before the court. As has become clear in the course of the hearing, the order that I am likely to make at the end of the hearing departs from it to some extent and consideration must be given to how that can be done.

Secondly, as I indicated in the course of argument, I am persuaded that the mother’s difficulties justify me taking the course of postponing the return of C for a short period of time to give her an opportunity to put her affairs in order.

Accordingly, I propose to give her until a fortnight on Monday to return C to this country. A fortnight on Monday, I believe, will be 16^th May. That gives her two weeks and two further weekends after this weekend when she is returning to Poland to get things sorted so that she can come to this country. She will return C to this country by 4 p.m. on 16^th May.

Finally, I have to consider what steps to take about the long-term issues in this case. There will plainly be the need for an assessment by a CAFCASS reporter and, in my view, it is appropriate now for C to be joined as a party and for a CAFCASS officer to be appointed as his guardian. I propose to make that order today and I propose to list the matter for a further hearing before me at the end of the week of 16^th May. The date I have in mind would be 20^th May but I will hear representations about that date. I will be sitting in Exeter that week. At that hearing, I will make an order, if necessary, about contact. Specifically I anticipate making an order, unless there can be an agreement, about C going to Poland for a period of two weeks during the summer period.

That is the order I propose to make today.