Juszkiewicz v Juszkiewicz

This is an application by a father for the return of his daughter to Poland pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. The essential background facts and context are as follows. Both parents are Polish, as is the child. Indeed, it is my impression that all three of them have only limited, if any, grasp of the English language. The parents were formerly married to each other and had periods both of separation and of coming together again. Their one child, N, was born on 2 May 2010, so she will be 8 in about two weeks’ time.

The marriage itself broke down some years ago and there was a divorce between the parents. An order as to the divorce and child and financial arrangements made by a court in Poland on 3 July 2014 provided that the child would live with her mother but have contact at that time for one full week every month. Later, when the child began fulltime school, that arrangement was altered to provide for contact on alternate weekends.

All parties were living in Poland until July 2017. At that time, the mother brought the child here to England where the mother has established herself living with a Polish partner who has himself been living and working in England for about 14 years. It is quite clear, and is indeed accepted by the mother, first, that prior to her bringing the child to England last summer, the child was habitually resident in Poland. Indeed, she had lived there all her life. Second, it is now accepted by the mother that the father retained rights of custody within the meaning of, and for the purposes, of the Hague Convention.

The mother does say that before she brought the child here, she sought the advice of one or more Polish lawyers and was assured that she could lawfully do so. Now, however, she accepts that that advice was mistaken and, accordingly, that unless she brought the child here with the consent of the father, her action in doing so was a wrongful removal within the meaning of, and for the purpose of, the Convention. She clearly accepts that the father did not consent to her bringing the child here. Indeed, she says at paragraph 36 of her statement that:

“I explained to him that I was struggling too much financially and practically and that I had friends in the UK who could help me get a decent job and it would be better for N rather than struggling in Poland. The applicant did not agree so I said that I would take legal advice.”

Further on at paragraph 39 of her statement, she says:

“I did not think that I had to apply to the Polish courts because I had custody of N and because I was assured by the lawyers. I know for certain that if I did, the applicant would again use very aggressive lawyers to intimidate and suppress me. I would not be able to afford to fight him.”

So, on the mother’s own account, it is perfectly plain that the father, who did have rights of custody, did not consent to the child being brought to live in England and, indeed, the mother knew perfectly well that he would not consent. This is, accordingly, a clear case of wrongful removal within the meaning of, and for the purposes, of the Convention.

The mother initially relied upon two defences. The first under Article 13 of the Convention was that the child herself objects to return to Poland and is of an age and degree of maturity at which it is appropriate to take account of her views. In that regard, the child has been seen by a very experienced officer of the CAFCASS High Court team, namely Ms Kay Demery. Her report dated 16 April 2018 is full and thorough and available for anybody with a proper interest in this case to read and see. It may, however, be summarised by quoting from paragraph 41 of the report that:

“...it is apparent from my meeting with her that she does not object to a return to Poland. She provided a positive picture of Poland and her life and relationships there.”

Although the mother herself still believes that her daughter objects to a return to Poland, it would be impossible for a court to so conclude in the light of that conclusion of the officer whose skill and task it is to elicit the wishes and feelings and any objections of children in these situations. But the report does indeed go further than that. At paragraph 22, Ms Demery describes how the child spoke in positive terms about Poland and her friends there and said that:

“She misses her maternal grandparents very much. She also misses her cousins and their parents who are her uncle and aunty.”

At paragraph 24 Ms Demery says:

“I asked on a scale of 1 to 10, with 10 being very much, how she felt about staying in England. She said 5. The reason she gave for the score was she misses her maternal grandparents. Her grandfather makes her laugh. I asked if there was anything about Poland or being with her father that she did not like. There is not anything.”

At paragraph 32, Ms Demery says:

“Whilst she has much to say that is positive about her life in Poland and her life in the United Kingdom, it would appear she is missing her family in Poland and the activities she undertook with her father.”

At paragraph 21, Ms Demery reports the child saying that her relationship with her father “is good” and at paragraph 38 that:

“During our meeting, N did not disclose anything of concern about her father’s behaviour.”

So, patently, there is no scope in the present case for any defence based on the objection of the child. Further than that, there is quite strong material indicating that the child has positive feelings about Poland, and positive feelings about her relationship with her father, and is, indeed, missing being in Poland, albeit that she appears also to be happy here.

The remaining defence is that under Article 13b of the Convention, namely that there is a grave risk that the return of the child would expose her to physical or psychological harm or otherwise place her in an intolerable situation. In this regard, the mother has made a very full and detailed statement which, indeed, makes very painful reading. Again, it is available for anybody with a proper interest in this matter, whether here or in Poland, to see and to read.

In one word, it can be summarised as drink. The mother describes a long history of the father being prone to drinking far too much alcohol, and when affected by alcohol to being neglectful of the child and placing her in situations of risk, and to being extremely aggressive towards the mother. Further, she says that the father had a particularly nasty habit of encouraging the child herself to be aggressive towards her mother and disrespectful of her. The mother says even that during the course of one incident in July 2013, the father so assaulted the mother as actually to break her arm.

The father, in his statement, which is not a simple blanket denial but does to some degree go into particulars and detail, very, very strongly denies the bulk, if not all, of the allegations made against him. Indeed, he points out that he is by profession a long-distance lorry driver and that if it was true that he drinks as heavily and as constantly as the mother alleges, he would be likely to have lost his job long ago.

Mr Mark Jarman, who appears on behalf of the father, makes a further point that most, though not all, of the allegations that are made focus in particular on the period up to about 2014 when the parties did divorce. He makes the point that notwithstanding what the mother now alleges, the Polish court did, either by agreement or adjudication, make provision for the child to stay a whole week with her father once every month.

It is, of course, impossible for me at a hearing of this kind to make any adjudication whatsoever as to where the truth of any of these allegations lies. The father is not present. I have not heard any oral evidence. I am faced merely with assertion and denial. Manifestly, everything that is alleged against the father took place within Poland, and if ever any court does have to try to establish where the truth lies, much the best court to do that is a court within Poland.

For the purposes of this hearing, I will assume, without, I stress, making any finding whatsoever, that the essential account given by the mother is true. If what she alleges is true, then one can well understand that she could not possibly contemplate resuming living with the father and, indeed, one could well understand that she might have considerable reservations about the child spending time alone with her father. The question is, however, whether, even on all the matters alleged by the mother, the return of the child to Poland would expose her to physical or psychological harm, or otherwise place her in an intolerable situation.

This being an application concerning two member states of the European Union to which Council Regulation (EC) No 2201/2003 applies, I am required to apply Article 11, paragraph 4, of that regulation. That provides as follows:

“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.”

As I have said, the father resolutely denies the allegations made by the mother, but even if all that she alleges is true, it seems to me that the undertakings which he offers and gives today will more than adequately protect the child from any significant risk in the period following a return. The essence of those undertakings is that the father will not go to the airport of arrival. He will not go within 5 km of the village to which the mother and child will return (which is, itself, about 70 km from where the father lives), and he will not, indeed, have any direct contact at all with the child unless first agreed by the mother in writing. Those undertakings and others, which will be recorded, will endure until the first hearing on notice to both parties before an appropriate Polish court. As I have said, that court will be much better placed to form a view as to where the truth lies and as to what protective measures, if any, this child will require after such a hearing.

As I mentioned, the mother has now formed a relationship with another man with whom she and the child are living here in England. Very understandably, from her perspective, she wishes to maintain that relationship and to return here. If she is to do so, she first requires either the permission of the father or a permissive order from a court in Poland. So I wish to make absolutely clear that, by the order which I make today for the return of this child to Poland forthwith, I am not in any way whatsoever indicating any view about, still less adjudicating upon, where the mother and child may live in the longer term. But I am in no doubt at all that the Convention requires (with no residual discretion in me in the circumstances that I have now described) that I order the return of this child to Poland forthwith. This is, as I have said, a Polish family. The issues between them must be, and can only properly be, resolved in Poland.

So, in my view, the defence under Article 13b is not sustainable in the present case. This child must return to Poland forthwith and there will be an order in the terms that have already been much discussed and fully drafted by Mr Jarman.

It remains for me to thank most sincerely Mrs Ismet Rawat who appears today on behalf of the mother, instructed by direct access. Mrs Rawat was taken ill last night but has gallantly struggled in in order to represent her client today. I am quite satisfied that the mother has not been prejudiced in any way whatsoever. Indeed, she has clearly received very sound advice indeed from Mrs Rawat. So I hope that the mother will be grateful to Mrs Rawat and I most certainly am.