Q & V (1980 Hague Convention and Inherent Jurisdiction Summary Return)

I am concerned with the two children of the applicant father MR and the respondent mother JN. Their eldest child is Q (born in 2002 and is now 17 years old) and their younger child is V (born in 2006 and is now 12 years old). The father who lives in Poland has made an application for the return of Q to Poland pursuant to the inherent jurisdiction of the court with respect to the children and an application for the return of V to Poland pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (The 1980 Hague Convention).

The applicant father has been represented today by Cliona Papazian, counsel instructed by Makin Dixon solicitors Ltd. The respondent mother has been represented by Christina Omideyi, counsel instructed by Wilson solicitors.

The application arises out of the removal of Q and V from Poland by the mother in about August 2018. Prior to that date they had both lived all of their lives in Poland. As the children were habitually resident in Poland prior to August 2018, and as the mother accepts they were wrongfully removed from Poland in breach of the father’s rights of custody, the 1980 Hague Convention is engaged in respect of V. Because Q is over 16, The 1980 Hague Convention does not apply to him and hence the application in respect of Q is brought under the inherent jurisdiction of the High Court, that conferring jurisdiction in respect of young people who have not yet reached the age of 18.

I hope that Q and V will forgive me for referring to them in this judgment as ‘the children’; I do so only because they are the children of the applicant father and the respondent mother and I am considering applications relating to them as the children of their parents. I am very conscious of the fact that Q is a young man rather than a child in the colloquial sense and that V is on the cusp of adolescence.

The parents have been involved in litigation in respect of the children since about November 2010, shortly after the parents separated. Although I do not have a complete picture of the Polish courts involvement in this family’s life over the eight odd years that have followed, it is clear that the parents have been in conflict over the arrangements for the children ever since their final separation in September 2010. At times the children have lived with their mother and at times the children have lived with their father. Since August 2014 the children, pursuant to an order of the Warsaw appeal court, either have been or should have been living with the father; that court having determined that they should do so.

In or about April 2018 the mother removed V from the father’s care. Within a short period, thereafter Q also ended up living with the mother. The father says that since then he has had virtually no contact; the mother seems in general terms to accept there has been little contact although she says that the father saw them in around July 2018. The father appears to have issued proceedings in the Polish courts to enforce the order that determined the children should have been living with him but it does not appear that that had been determined prior to the children’s departure from Poland. It seems that there is a hearing in Poland, probably in connection with the father’s application, listed for 31 January 2019. In about August 2018 the mother brought them to England and since then they have been living together with the mother, her partner and their two-year-old son. V commenced school in about December 2018 and Q has been attending an English language school since about January 2019.

The proceedings commenced in this court on 29 November 2018 when Mr Justice Newton made a location order without notice to the respondent mother. On 18 December the matter came before Ms Justice Russell. Both parties were represented by counsel and directions were given including the court dispensing with the need for the making of a written application in respect of Q. The mother confirmed that she intended to defend both applications albeit she had had little time to seek advice but an indication was given that she would be relying on the Article 13(b) exception of grave harm or intolerability. She was directed to file an answer setting out the details of any defence and a statement in support by 5 January 2019. The father was directed to file evidence in response by 15 January. Regrettably the order did not specify that the mother should identify any protective measures that she sought in order to ameliorate any Article 13(b) risk. Nor did the order required the father to identify any protective measures that he relied on to ameliorate any Article 13(b) risk identified. A Cafcass officer was directed to meet with the children to ascertain their maturity, their position on a return to Poland and whether either raised an objection. A final hearing with a time estimate of one day was listed at risk on 24 January 2019.

Unfortunately, the mother did not file an answer as required by Ms Justice Russell’s order and so her defence to the application has to be divined from the witness statement that she filed. The position statement filed on behalf of the mother for this hearing identified only Article 13(b) grave harm or intolerability as a defence. However it is self-evident from the Cafcass report filed that the article 13 child’s objections exception was also potentially engaged.

The father’s statement in response joined issue with the mother’s account of the history. No protective measures were identified in the statement that addressed the concerns raised by the mother. Having seen the Cafcass report the father offered an undertaking that the children should reside with their paternal grandparents for a period of time. This had not been capable of refinement although I was unable to get to the bottom of why this was so given that the matter had been due to be heard on 24 January and the father had both specialist English solicitors and a lawyer in Poland.

On 24 January 2019 no judge was available to hear the case and so the matter was adjourned over until 30 January 2019 and came before me. Ms Papazian provided a detailed skeleton argument for which I am very grateful. Ms Omideyi appears only to have been instructed on 29 January and she relied on the position statement filed by her solicitors.

The jinx that had affected the preparation of the case continued on the 30^th. Despite the court having booked two Polish interpreters as required by the order of Ms Justice Russell the contracting agency mistakenly cancelled the booking and so as at 10.30 there was no interpreter for the mother to enable Ms Omideyi to take instructions from her or to assist her in following the hearing. As it happened her English was sufficiently good to enable she and her counsel to confer and for her to follow the proceedings and give instructions. Her proficiency in English was demonstrated by the statement that she had provided to the court which was prepared in English and without the need for it to be translated or interpreted to her. It was also evident in how she followed and gave instructions in response to what I was saying and what the Cafcass officer and Ms Papazian were saying. The absence of an interpreter for the father prevented Ms Papazian being able to take instructions from the father or his Polish lawyer; although given that court interpreters are only booked for the commencement of hearings at 10:30am the emphasis should be on solicitors ensuring that they have taken instructions prior to the commencement of the hearing. Thus the hearing commenced without interpreters. At some point after 2:00pm whilst Ms Demery was giving her evidence, an interpreter for the mother arrived and later an interpreter for the father.

At the commencement of the hearing I raised with the parties the issue of Q’s position. As a 17-year-old whose return was sought against his expressed wishes it seemed to me that there was potentially an argument that he ought to be joined as a party. Ms Omideyi told me that she too had raised this issue upon her arrival at court.

The hearing proceeded with Ms Demery giving evidence before and after the short adjournment and the parties making submissions thereafter. We drew stumps at about 5:00pm. At that point I indicated that I would not be in a position to deliver a decision still less a judgment that afternoon. Ms Demery had identified that both children wanted to meet with me. Earlier in the day I had declined to meet with the children prior to considering and circulating my judgment having regard to the difficulties highlighted by the case of Re KP (abduction: child’s objections) [2014] 2 FLR 660. I indicated that I would see the children in order to explain my decision to them I being fully satisfied that their views had been comprehensively explored by Ms Demery and her meetings with them and in the letters they had written to me and that it was not appropriate to see them to further reassure them that I understood their position prior to giving judgment. The difficulty of them seeking to give further evidence to me or to persuade me of their views seemed to me to be too great in this case in particular having regard to Ms Demery’s views on the extent to which the children have been exposed to chronic parental conflict over a period of many years and the pressure they might feel under. Thus in the exercise of the discretion given to me and having regard to the 2010 Practice Note (Guidelines for Judges meeting children who are subject to family proceedings) and Re KP I concluded it was most appropriate to see them after I had prepared my judgment. I therefore directed that enquiries were made of Ms

Given that no issue was taken with the habitual residence of the children prior to August 2018, and nor was it suggested that the removal of the children from Poland was anything other than a wrongful removal, the essential conditions for the applicability of the Article 12 summary return remedy were met. Thus the obligation on the court is to order the return of V forthwith to Poland unless an exception under Article 13 is established.

The mother’s case is summarised in her position statement and evidenced in her witness statement of 4 January 2019. The essential elements of her case are as follows:

Taken together with the position statement filed on her behalf (and the Cafcass report I approach the mother’s defences as amounting to the following:

returning the children would separate them from their mother

In her submissions Ms Omideyi emphasised the following points:

The father’s case is set out in the initial statement filed by his solicitor and supplemented by his own statement dated 18 January 2019. Not surprisingly his account is very different to the mother’s although there are areas in which they appear to agree.

Ms Papazian has filed a detailed skeleton argument on behalf of the father in which she helpfully sets out the relevant legal tests for both the inherent jurisdiction application and The 1980 Hague Convention application. Her principal submissions are as follows

Ms Omideyi advanced an application for separate representation for Q and sought an adjournment to put that into effect. She submitted that the mother was unable to advance a case on behalf of Q. She said that he has a clear understanding and clearly expressed wishes which cannot be adequately represented by the Cafcass officer. At his age he should have a lawyer. Although he has not asked for a lawyer, he is new to this country and this should not be held to be a bar. At present the court doesn’t have enough information about whether Q will comply with an order for return and this would need to be explored with his own representation.

Ms Papazian opposed the application. She submitted that it was not essential for a 17year-old in this situation to be separately represented. There was nothing from Q which indicated that he wanted a lawyer or to be involved in these proceedings. Given his age and his exposure to litigation over the years had he wanted to be more involved he would probably have said. She points out that if he were to become more involved he would no doubt come under intense pressure from the mother to drive her case which would be harmful to him. At present it is reasonable to infer that the views he expresses derive from a desire to align himself with the mother and to avoid being pressed by her. In particular in relation to Skype if he says he is complying with a court order this insulates him from any maternal condemnation. His views are fully before the court and his case has been articulated by the mother balances in favour of him not being separately represented whether for welfare reasons or for autonomy reasons.

The test for joinder of a child as a party is set out in FPR 16.2(1).

The proceedings in relation to Q are brought under the inherent jurisdiction and so pursuant to FPR 16.6 (1) Q would be able to instruct solicitors directly. He would be entitled to public funding (subject to means) PD 16 A paragraph 7 identifies particular circumstances where it may be appropriate to make a child a party. The Supreme Court also gave guidance in the context of 1980 Hague Convention proceedings in Re LC (reunite: international child abduction centre intervening) [2014] 1 AC 1038. The Court of Appeal considered the position in relation to private law proceedings in Mabon-v-Mabon [2005] 2 FLR 1011. I have in mind what those courts said and in particular I am very conscious of Q’s age and the Court of Appeal’s indication that in private law proceedings concerning fundamental decisions in older children’s lives that they should be involved in the decision-making. I note that the decision I am asked to make is in no sense a final determination of where or with whom Q should live. It is a decision which would involve him returning to Poland so that the courts there could consider his position; those courts being far better placed given their longterm involvement in this family to understand his position and what would be appropriate for him. Although I don’t underestimate the importance of the decision to Q it is not in its nature comparable to a leave to remove with long term permanent consequences. I also observe that none of the categories identified in 7.2 (a)-(j) are apt to apply to Q’s situation. In particular sub paragraph (e) whilst it might prima facie apply has to be viewed in the context of what Lord Wilson said in Re LC where he identified that in child’s objections cases that paragraph should not be taken to indicate joinder in every case. I also note that Lord Wilson referred to Baroness Hale’s observations in re M taking account of whether joinder would add sufficiently to the court’s understanding to justify the additional cost, intrusion and delay.

In determining whether it is in a young person’s best interests to be joined to proceedings the court must take account of issues relating to the autonomy of the young person and their own desire to participate. The court must also take into account matters such as the need for them to have a separate voice in order to ensure that their position is adequately advocated or understood. The court must weigh the impact of separate representation on their welfare and the potential negative impact of them being drawn into the parental conflict and the court arena but also positives in relation to what they might bring to the process and how it might ensure they bought into the outcome. Lastly the court must also consider the impact on the proceedings in terms of delay or expense.

Ms Demery is a very experienced Cafcass officer. She has worked for many years in the High Court team dealing with Hague Convention cases. She has considerable experience also of acting as a Guardian for children. When she said in the witness box that she had not thought about separate representation for Q she seemed surprised herself that she had not. However I conclude that she was probably being too hard on herself. In most cases where separate representation is considered by a Cafcass officer it is because either the court has invited them expressly to consider the issue or because it becomes apparent to the Cafcass officer through their interview with the child either that the child’s own attitude to the case is such that they are either expressly requesting their own lawyer or they are demonstrating an approach which indicates that they would want a lawyer if they knew that option was open to them. Alternatively the situation itself may demand consideration of separate representation.

Nor does the case fit within any of the FPR PD 16A7.2 categories. In welfare terms the chronic parental conflict means that Q is caught between two parents both of whom he probably loves and he should not be forced to take sides where the evidence suggests that he is unable to express himself freely in his current situation. His being drawn into the court arena is likely to be more harmful for him in welfare terms than empowering in autonomy terms. Joining would also result in delay and I’m not even sure that if I joined him he would particularly wish to instruct a solicitor and become involved. For all those reasons I do not consider it to be in his best interests to be joined.

Overall my conclusion is that it is not in Q’s best interests to be made a party to these proceedings.

As will have been noted from above I frequently find myself using expressions such as ‘appears’ when dealing with factual matters in this case. Inevitably in summary applications under the 1980 Hague Convention the ability of the parties to put clear evidence before the court, in particular documentary evidence is limited by timeframes, access to funds and access to documentation. However even having regard to those to be expected limits it has been a challenge to get a clear picture of the historical background in this case. Whilst in respect of respondents who are not entitled to non-means and non-merits public funding and who might instruct nonspecialist solicitors the same cannot be said of applicants who received non-means non-merits public funding and whose solicitors will always be on the ICACU panel of specialist abduction solicitors. Whilst the father made oblique reference to legal proceedings in Poland since April 2018, it was only when I specifically asked about the position that a letter dated 21 January 2019 emanating from the father’s Polish lawyers and setting out a summary of legal proceedings in Poland was produced. Ms Papazian informed me that she had asked that the letter be included in the bundle but that it had not made its way in. In paragraph 15 of the father’s statement he refers to the children being seen by the court in Poland - possibly in 2017 or 2018. The mother also refers to this in paragraph 20 of her statement. However no documents have been provided which confirm what occurred at court. Both the mother and the father make reference to issues relating to the care of the children being raised with police, possibly social services, the school but there is almost no contemporary documentation; the last formal piece of documentation from the court appearing to be the judgment of the appeal court dating back to 27 August 2014. The mother produced a series of exhibits to her statement many of which were in Polish and which had not been translated; although informal translations were referred to by Ms Omideyi in submissions.

Thus the chronology which follows is far from complete albeit I’m satisfied that a sufficiently clear picture emerges of the history that this family has lived through

Ms Demery was delegated the task of preparing a report for the purposes of ascertaining their respective maturity, their position on a return to Poland and whether either of them objected to returning. Prior to reporting she had read the papers in the case although had not seen translated copies of some of the exhibits to the parties’ statements or I think the exhibits to the father’s second statement. She carried out police checks in respect of the mother and father and the mother’s partner. The checks came back negative in respect of the mother or father, and the response in respect of the mother’s partner was awaited. She also made contact with V’s school and saw Q and V on 17 January 2019. An interpreter was present but was only required for clarification at certain points. They also wrote letters to me. Ms Demery also gave oral evidence in which she expanded upon or clarified aspects of her report. She satisfied herself that both understood the purpose of the meeting.

The following seem to me to be the salient points that Ms Demery made in respect of Q:

The following seem to me to be the salient points that Ms Demery made in respect of

In the report from V’s school they note that V’s punctuality and attendance is good, she is well presented, is confident, polite and articulate but quiet. She is above average academically, completes her homework and is an excellent team player. The school note that the mother’s partner has demonstrated behaviour at times which is concerning; being very impatient, confrontational and verbally aggressive towards staff. The school expressed a concern that the mother’s partner likes to be in control of the conversation at all times and that V struggled to get her voice heard; the mother’s partner apparently speaking on her behalf. They were aware of her medical problem

Ms Demery took the opportunity to clarify with the mother whether she would return to Poland in the event that the court ordered a return and the mother clarified that she could not as they have no money or prospects in Poland and she does not trust the Polish authorities or the legal system.

Ms Demery identified the difficulty in assessing maturity over the course of one meeting and when not communicating in Q or V’s first language. Ms Demery had information from the Polish and English schools. She thought their composure and ability to express themselves suggested their cognitive maturity is on a par with their age.

A central theme that emerged from both Ms Demery’s report and her oral evidence was the extent to which the children had been exposed to chronic parental conflict and events which were adverse for their development. She observed that the circumstances are not likely to promote resilience to cope with further difficulties and the need for stability in their living arrangements and family relationships.

In her evidence Ms Demery said that she did not feel she had been able to ascertain the children’s authentic views. She thought they had been exposed to chronic parental conflict which made it difficult to get a sense of the children’s lives in Poland and any positives of life with their father. She thought their true wishes and feelings were obscured by the parents’ conflict. It was difficult for them to understand the impact that the parental conflict had had upon them. She thought they were aware that their parents don’t get on and thus it is extremely difficult for them to enjoy relationships with both. Ms Demery thought that the fact that they were unable to have a relationship with the paternal grandparents now was symptomatic of this. She also was surprised at V’s inability to say anything positive about the father as the evidence suggests in the past she has been positive about him. The same is true of Q and given their ages one might expect a more nuanced approach. The ‘Impact of parental conflict’ tool supported her own evaluation of parental influence emanating from the mother.

She said she was reserved throughout the interview and it was difficult to get a sense of what is happening for her; she described her as being flat throughout. When describing the father’s lack of care she was not indignant as might be expected if she

Ms Demery made clear that she did not mean necessarily direct or deliberate influencing but rather a product of exposure over the years to chronic unabated parental conflict where the children’s real views have become buried in the conflict. She thought it was unusual that they had clearly over the years spoken with others about their views but they were unable to recall it in any detail.

She thought Q was more open than V but he actually had less to say. What he said about the father’s care is broadly in line also with what the mother complained of; their needs not being met. She identified that at 17 years of age, with the increasing responsibility and independence which comes with young adulthood and maturity his views might be considered as determinative and that orders would only be made against those views in exceptional circumstances.

At 12 years of age, she thought the court needed to be particularly mindful of V’s wishes and feelings both wishing to stay in the UK with her mother and brother and showing no signs of wishing to re-establish her relationship with her father. At her age the connection with a same-sex parent was arguably more important than ever.

However in respect of both Q and V, she identified a genuine concern as to how much weight could be given to their views given the years of chronic parental conflict and the issues arising from that which impacted upon the children’s expressed views.

Despite the age difference between Q and V she concluded that they had a close relationship and that it was important for them to remain together, they generally having been constants in each other’s lives. She thought Q was close to and protective of V and that he would return to Poland with her if the court ordered her return. The mother made clear that she would not return with Q and V. She wondered whether a return order might actually be a relief for Q and he might voluntarily take a decision to return were the court to order V’s return. She did not think he was an angry young man and he has an ongoing relationship with his father. She concluded that he was missing Poland more than V was and would have mixed feelings about going back.

She thought any return should be managed and that staying with the paternal grandparents might be a reasonable way of dealing with that.

Ms Demery thought the views expressed by V and Q and the way in which they gave their opinions did not indicate a level of emotional impact that indicated there would

Article 13(b) of the 1980 Hague Convention provides as follows:

“‘… the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return established that – (a) …; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation…or

The judicial authority may also refuse to order the return of the 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 leading authorities in relation to the application of the Article 13(b) defense are:

The following principles can be drawn from those judgments

In respect of the grave risk of the child being placed in an intolerable situation the

The law on the 'child's objection' defence under Article 13 of the Convention is comprehensively set out in the judgment of Black LJ in Re M (Republic of Ireland)(Child's Objections)(Joinder of Children as Parties to Appeal) [20 15] 2 FLR 1074 (and endorsed by the Court of Appeal in Re F (Child's Objections) [2015] EWCA Civ 1022 ). In summary, the position is as follows:

I also note that in some cases an objection to a return to one parent may be indistinguishable from a return to a country.

If a defence is established the court must then consider how to exercise its discretion on ordering a return or not.

The extent and of the discretion and the relevant factors for its exercise were discussed by Baroness Hale in In Re M [2007] UKHL 55 She made clear that there is no requirement to show exceptionality to justify exercising the discretion (see para 40) and that the discretion is at large. Policy considerations (including swift return of abducted children, comity with other countries judicial processes, deterring abduction,) which in hot pursuit cases will be of great weight must be balanced against factors relating to any defence established and welfare considerations which might support either a return or a non-return. Baroness Hale said:

The child’s best interests are the Court’s paramount consideration when considering an application for return in the exercise of the inherent jurisdiction [Re J (Child

As Re J further makes clear there is a choice before the Court [28]:

Whether or not a return order is to be made depends on the facts of the case; however there is a starting point in favour of a return against which a case has to be made. Rejecting a submission by the applicant that courts should apply an approach that was broadly analogous to the 1980 Hague Convention approach Baroness Hale said:

The House of Lords made clear both in Re J, but also in re M (above) that the welfare assessment in these sorts of cases may, if the court considers it appropriate, take a summary form. On the other hand, it may require a more detailed and comprehensive welfare evaluation.

My discussion in the following paragraphs is of relevance to the application for V’s return pursuant to the 1980 Hague Convention where the Article 13(b) and child’s objections exception are deployed. However it is of also of course relevant to the welfare of Q which is the paramount consideration in relation to the application for his return pursuant to the inherent jurisdiction. The interplay between the evidence, issues arising and conclusions does not facilitate clear dividing lines.

The chronology, the party’s accounts, the documents produced and the children’s own interviews combined disclose a troubling history of parental conflict. Whilst there are no doubt many components which have given rise to this the most significant aspect, particularly in recent years, would appear to be the mother’s inability to come to terms with the decision of the Polish courts in August 2014 which settled the children’s residence with their father. The judgment of the Polish court makes clear that at that point in time the children expressed clear views about how they experienced their mother and their father. Although it appears that both the mother and father were able to meet their physical needs, it seems from what can be gleaned from the Polish appellate court judgment that the view of the psychologist and the court was that the father was better able to meet the children’s emotional needs. At that time it was clearly the case that the children preferred the father as a parent finding him more stable calm and interested in their matters. Regrettably the mother’s response to that decision was to refuse to comply with that order thus exposing Q and V to further conflict including enforcement processes and sudden changes of care. That approach has plainly left its mark on V in particular and is an inverse repetition of the mother’s removal of the children from the father’s care that the Polish appellate court identified as harmful in their judgment.

Thereafter it appears that the children remained in contact with their mother albeit restrictions were placed on contact, I think, as a result of the mother’s failure to comply with the residence order. That contact progressed and it appears that the children enjoyed relationships with their father, their mother and their extended family on both sides.

It appears that the mother’s dissatisfaction with the Polish appellate court’s order did not abate and she continued to find fault with the parenting that the father provided to Q and V. The mother’s own account combined with that of the father makes tolerably clear that the authorities in Poland were notified of the mother’s concerns. Enquiries appear to have been undertaken by V’s school, by the police, by medical services and by the court. None of the complaints seem to have been made out. The mother’s response to the involvement of those authorities is to reject the conclusions and to assert that those involved were either not competent or were pressured by the father into refusing to uphold the concerns. In respect of the children’s medical conditions and in particular V’s the evidence from the clinicians who have been involved does not provide a clear picture of her having been diagnosed with a heart problem. Both the mother and father seem to be agreed that when she was seen in the Polish hospital in April 2018 the clinicians did not consider she had a physiological problem but rather had been emotionally distressed. The letter produced by the father says both children are healthy and neither require specialist treatment. The letter produced by the mother dated 15 December 2018 appears to be a referral based largely on an account given by the mother, or possibly by V and says that the palpitations are not typical of TSV which is what the mother appears to suggest she suffers from. In respect of Q it seems from all of the evidence that the father had sought treatment for his sinus issues but had opted not to go down the surgical route which the mother preferred.

Although both Q and V make complaints about the father’s care of them to Ms Demery in January 2019 it does not appear (according to both the mother and the father) that they made complaints about his care when seen by the court in February 2018 (or thereabouts). Although the mother says (see paragraph 20 of her statement) that they were not asked about contentious issues I find it hard to believe that these articulate and intelligent children speaking in their own language would not have felt able to express serious concerns had they held them at that point in time. I am conscious that they were of course living with their father then but they were having regular weekend contact with their mother and it seems clear that this was at a time when the mother was making complaints about the care given to the children by the father. In assessing the children’s own accounts of the care given by their father I take account of the views I have reached below in respect of the weight that can be given to their accounts and their views when I deal with child’s objections or a return pursuant to the inherent jurisdiction.

The picture which emerges from the evidence enables me to reach a clear view on the Article 13(b) defence that the mother puts forward in respect of the father’s care of the children and the response of the Polish authorities. I do not consider this to be a case where I need to take the allegations at their highest as the evidence, not least that of the mother herself, allows me to reach a summary conclusion on these matters. The totality of the evidence does not support the mother’s contention that the care given to the children by the father was seriously deficient so as to present a grave risk of harm to them were they to return to his care. The most serious of the mother’s complaints is that the father ignores V’s heart condition and that she might be at serious risk if left alone at home by the father. The medical evidence and the accounts of the parents simply does not support the level of risk that the mother contends for and in any event

What of the application of Article 13(b) to the separation of V from her mother. The decision of the Polish courts in 2013 which settled V’s residence with her father was a welfare based decision. She appears to have held positive views about her father at the time and to have settled into her father’s care notwithstanding what she herself says about it being a shock. Indeed it must have been. The picture which emerges of her whilst in the care of her father is one where she was able to have relationships with her parents and extended family on both sides and where she was doing well at school. This does not suggest that the separation from her mother then or residing in the care of her father was harmful. Although she now expresses the clear view that she wishes to remain in her mother’s care and does not wish to return to her father’s care again I must take account of the weight which one can sensibly give to her expressed wishes given Ms Demery’s observations and the wider evidential picture. The Polish court was engaged in these children’s lives in spring 2018 and apparently saw nothing which justified a change in care. I have not had the benefit of copies of documents from the Polish court or any social worker involved at the time but selfevidently the change in the care arrangements was as a result of the mother’s actions rather than court action. It is the mothers case that she cannot return to Poland and Q told Miss Demery that they had to move to the UK for financial reasons. Whilst the mother may now find it harder to return to Poland given her flat appears to have been subject to some process of seizure and sale in Poland and whilst she and her partner may find the economic prospects in England better I’m not satisfied that she cannot return. It is a choice she has made and continues to make. I am not at all clear as to why she and her partner moved to the UK and whether it was motivated by economic prospects or whether it was to get away from Poland and the system that she is so critical of and the possibility of the children being returned to the father again against her will. Having regard to the conclusion I have reached that V’s views must be discounted heavily to reflect the situation she is in and the exposure to chronic parental conflict the mother has not satisfied me that on the balance of probabilities the separation of V from her mother will expose her to a grave risk of physical or psychological harm arising from the separation itself or that such separation would be intolerable for V.

What of separation from Q – would that give rise to a grave risk of psychological harm or an intolerable situation for V? On balance I consider that Q will return with V to Poland if I make that order and thus the risk of separation will not arise. Their history, in particular in April 2018 and Q’s protective actions over recent months point to the likelihood on balance that he will return to Poland if V does so. However even if he did not return, I have reached the conclusion that the separation of Q and V

Therefore whilst I accept that there will be an impact on V of her returning without Q, I do not consider that the mother has established on the balance of probabilities that the impact of such separation creates a grave risk of psychological harm or are other intolerable situation for V.

As it happens in my view this is a theoretical issue in any event as I consider that Q will return with V.

What of the expressed views of Q and V? For the purposes of the 1980 Hague Convention I’m satisfied on a robust and straightforward assessment that V’s views amount to an objection within the ordinary meaning of that term, as explained by Lady Justice Black in Re M (above). Taking into account the positive views she has expressed in respect of her mother, the negative views she has expressed in relation to her father and her expressed desire to remain living in the UK with her mother, stepfather, little brother, and older brother satisfy me that these are more than a preference but are an objection to returning to the care of her father in Poland. Likewise Q’s expressed views constitute a clear wish to remain living in the UK in this family unit.

Both Q and V are of an age and degree of maturity (they both being considered to be of a maturity commensurate with their chronological age) where it is appropriate to take account of her views (V) or to have regard to having regard to his age and understanding (Q). The evidence from Ms Demery, from their letters from their parents and from the school and court process in Poland satisfy me that their views should be taken into account and given weight.

Thus in respect of V, the gateway to the child’s objection defence is established. In respect of Q, the Re J starting point might well be displaced by his views as a mature 17-year-old. Thus the discretion under article 13 of the 1980 Hague Convention or the discretion engaged by the inherent jurisdiction is clearly engaged.

However the critical question in this case is what weight should properly be given to their views in that discretionary exercise because they are not determinative either in respect of V or Q.

In respect of the child’s objections exception the House of Lords has specifically identified a number of factors that ought to fall for consideration when determining child’s objections.

It is clear from what both Q and V say that the nature of their objection is a general, albeit not very serious, criticism of the level of care afforded to them by their father together with a general, albeit not very reasoned, preference to their mother’s care. Thus the objection is not of a more fundamental or profound nature that might arise in cases of physical or emotional abuse. In terms of the strength of the objection it is not especially strong, but nor is it particularly weak. Neither V or Q express themselves in particularly strong terms, which evidences very strong feelings about remaining or returning. Ms Demery did not detect the indignance or strength of feeling that is frequently encountered in children and young people the subject of this sort of application. Q in particular expressed views that he was anxious about coming to the UK and he is clearly still wistful about aspects of life in Poland. I suspect that having lived all his life in Poland, having been school in Poland and having a group of friends in Poland as well as an extended family who he had relationships with in Poland that he feels rather more positive about Poland and rather less positive about the UK than he has actually said. The same is likely to be true of V who also was doing well in school, had good friends and appears to have had good relationships with her extended family on both sides whilst in Poland. Q asks me to think twice before ordering a return and I will do so

But having regard to their expressed views, to what extent are those expressed views authentically their own or the product of influence of the abducting parent? Ms Demery is a very experienced Cafcass officer with considerable exposure to this sort of case. It was clear from her evidence that she had considerable reservations about her ability to determine what the children’s authentic views were. She was clear that they were overlaid or obscured by their exposure to chronic parental conflict. She identified particular features which pointed at influence from the mother or her household; whether direct or environmental. V’s apparently positive memories in relation to schoolfriends was converted into a complaint about bullying after she returned to her mother in the waiting room and wrote her letter. The history of the children in Poland however in any event makes abundantly clear that they have been caught up in a situation where their mother refuses to acknowledge or accept the Polish court’s decision that the children should live with their father. That decision was based in large measure on the children’s then apparently expressed preference for their father over their mother. The concerns expressed by the school about V being able to express herself freely in the presence of the mother’s partner are a further concern. The fact that the children were able to have a full relationship with their mother and their extended families in Poland but have had an attenuated almost nonexistent relationship with their paternal family since August or September 2018 suggest that they may feel obliged to align themselves with their mother when in her care but are more able to express themselves freely when in the father’s care.

This latter point also bears upon the extent to which their views coincide or at odds with other considerations relevant to their welfare. These children were born and grew up in Poland being fully integrated into a family and school community there. Being re-integrated into that community, being able to re-establish their friendships, attend their schools, reengage with their extended families are all beneficial to their welfare and thus their views are at odds with a more objective appraisal of their welfare.

Objectively speaking their complaints about their father’s care and thus their reasons for wishing to remain with their mother and not return to their father do not seem to be consistent with the evidence that the mother and father give about what has occurred in Poland. Thus one has to question the objectivity of their views. One also has to question the perspective of the children. Although Q’s ongoing relationship with his father and the nature of his description of that suggests something positive he describes it in negative terms. V is wholly rejecting of her father. Neither of those positions appear objectively justifiable or demonstrate any sense of perspective. The evidence of their views ascertained by the court and the psychologist in 2013 is inconsistent with their position now. Of course it may all have changed but the evidence does not suggest that is so. I conclude that their views are likely to be different when they are in Poland and away from the atmosphere of hostility to the father which they currently exist in. Thus there views will be ameliorated upon a return to some degree or another.

I agree with Ms Demery that what all of this indicates is two young people who have been exposed to conflict as their mother has kicked back against the Polish court’s decision, refusing to accept it in 2014 and since. The mother’s unhappiness with that decision and her resistance to its enforcement and her subsequent ongoing campaign to undermine the father’s care of the children and to persuade the Polish authorities that the children should live with her must have exposed the children quite extensively to that conflict. In 2013 the psychologist report identified the mother as being seen by the children as unpredictable, unstable and loud. Although it was only a small illustration I observed at times in the hearing that the mother was unable to contain herself either becoming distressed or agitatedly making points to her legal team. The evidence suggests that she would be unable to shield the children from her views and indeed the track record of the absence of contact with the father and the estrangement from the paternal family since April 2018 all support this.

Thus the objection which V expresses in my view carries very considerably less weight than at first glance. Indeed in reality it may not be an objection any more. Likewise Q’s expressed wishes.

In respect of the child’s objections defence and the discretion I must also take account of the general welfare considerations and the policy considerations supporting the Convention.

In welfare terms clearly a further change to the children’s arrangements will have negative consequences. They have now been with their mother for some 10 months and in this country for some five months. I note Ms Demery’s observations on their reduced resilience in respect of change. Going against their expressed wishes may also have some welfare consequences. However on the other side of the equation the children will be reinserted into an environment with which they are wholly familiar as I have identified above. Resuming familiar schools, reacquainting themselves with friends, re-engaging with their extended family not least their father and resuming life with a language and culture in which they have been raised. All of those have clear welfare advantages.

The policy considerations in this case are also weighty. The mother has a track record of non-compliance with court orders or otherwise taking unilateral action otherwise.

Taking all of those matters into consideration and weighing them all in the balance, the remnants of the objection and welfare matters in support of V remaining here and

I have thought very long and hard about whether an order for return is in Q’s best interests. I have concluded that it is in his best interest’s overall to return but that still begs the question of whether an order is appropriate or not given his age. I have thought more than twice about what the right outcome and order should be in respect of Q. I have considered whether given his age I should decline the application for the order for return but rather to operate on the belief that he will return with V in any event as I believe that he wishes to remain with her and a large part of him wishes to return to Poland anyway. If I leave the choice to him I feel reasonably sure that he will come under significant pressure from his mother and her partner to remain and I do not consider that to be in his best interest. I conclude that there may be some merit in Miss Papazian’s point that although he describes his contact with his father as being undertaken in order to comply with the court order that may in fact be a mask for an underlying and genuine desire to have a relationship with his father. I have also obviously considered whether in making an order for return it will set up struggle between the court system seeking to enforce the return and Q resisting. From all I

I therefore conclude that the mother has failed to establish either an Article 13(b) or a child’s objections exception to the father’s application pursuant to the 1980 Hague Convention. I will therefore order V’s summary return to Poland.

I also conclude that it is in Q’s welfare interests to be returned to Poland pursuant to the inherent jurisdiction of the High Court with respect to children.

The applicant father has offered an undertaking that the children should initially move to stay with his parents in order to ease their transition back to Poland. I do not consider that any time limit should be placed on this if the children wish to return to their father’s home. It may be that once the children returned to Poland they will wish to return to live with their father; if they do they should be able to. If they do not they can remain with their grandparents until the court has conducted a further enquiry and made further welfare-based decisions in accordance with the substantive jurisdiction that they have over these children.

That is my judgment.