Strand, London, WC2A 2LL
B e f o r e :
Sitting in private
|- and -
Mark Jarman (instructed by Brethertons Solicitors) for the Respondent
Hearing date: 22 January 2018
Crown Copyright ©
Mr Justice Mostyn:
i) FPR 27.3 required the mother to attend this hearing in person unless the court otherwise ordered.
ii) By its order of 15 November 2017 (para 5) the court had allowed, as a concession, the mother to attend the hearing via video-link or by telephone.
iii) By virtue of FPR 22.2(1)(b) at the hearing any facts would be proved by evidence in writing. Therefore, there would be no oral evidence and so Article 17 of the Service Regulation did not apply, and was of no relevance. The sole purpose of para 5 of the order of 15 November 2017 was to allow the mother, as a matter of convenience to her, to participate in the hearing remotely.
iv) The mother had been given full details of the numbers to dial for establishing a video or telephone link but had been unwilling or unable to make any kind of connection, not even a telephone connection.
v) As a matter of final indulgence, I would adjourn the matter for a further week to Wednesday 29 November 2017 at 10:00. However, in the light of the continued meritless obstacles generated by the mother to remote participation in any form I revoked para 5 of the order of 15 November 2017. Therefore, pursuant to FPR 27.3 the mother must attend the next hearing in person.
vi) The court was not empowered to grant legal aid.
i) acted promptly on finding out that the court had exercised its power to enter judgment or make an order against the applicant;
ii) had a good reason for not attending the hearing or directions appointment; and
iii) had a reasonable prospect of success at the hearing or directions appointment.
i) that there had been a material change of circumstances since the order was made; or
ii) that facts on which the original decision was made had been misstated; or
iii) that there had been a manifest mistake on the part of the judge in formulating the order.
"Considering the fact the children are currently residing in Poland and the child psychiatrist opinion, paediatric neurologist specialist, [name redacted], of 1 August 2016 clearly indicates the minors attachment to Poland as the main centre of life, e.g. the centre of existence … The necessity to approve, and most of all, take of this evidence has been established at this stage of the proceedings as a result of the children residing in Poland since 30 July 2016 after their unlawful abduction by the participant."
Thus, there is explicit reliance on fresh evidence to demonstrate that the children have been permanently resident in Poland since 30 July 2016. This is of course just before the application of 1 August 2016, and well after the institution of proceedings in England on 4 July 2016..
"One cannot agree with the ruling by the court of the first instance that in the present proceedings the residence of the minors [names redacted] on the day of the application filed was not "permanent" or "habitual". As it was stated, among others, in an application by the applicant of 5 July 2016 the children of the parties on the date the application was filed met the above requirements."
And on page 10 it was stated:
"On the day the application was filed on 2 June 2016, the children were living with their mother in Poland intending to remain there permanently before they were abducted from Poland and retained by the father in Hungary and United Kingdom."
It can be seen that the evidential basis for the assertion that the children were permanently resident in Poland on 2 July 2016 was the contents of the supplemental pleading filed by the applicant mother on 5 July 2016. But as I explained in my previous judgment at para 20, that supplemental pleading unambiguously stated that "up to now the parties have resided in England". Moreover, the decision of Judge Rzeznik given on 7 December 2016 refusing the father's application under the Hague Convention does not state that the children were habitually resident in Poland on 2 July 2016. Although it relies the father's alleged agreement to live in Poland at some point in June 2016 it is completely unclear from the judgment when it was found that habitual residence had been established in Poland. All one can tell from the passage in the court bundle at E78 is that the judge was satisfied that by 30 July 2016 when the mother took the children unilaterally to Poland by train, habitual residence had been established, somehow, in Poland.
"Given that the Polish court dismissed the mother's application dated 2 and 6 June 2016 for want of jurisdiction on 14 July 2016, and the mother did not appeal the decision until 3 (sic) August 2016:
(a) What is the date that the Polish Court was first seised with an application regarding matters of parental responsibility?
(b) Was the English court first seised with an application regarding matters of parental responsibility given that an application was issued on 4 July 2016?"
"The court of first instance may respond favourably to the complaint and there is no need for court of second instance to hear the matter. As a result of this the decision under appeal is set aside. Hence, in this case your application was not dismissed; once your complaint to the decision regarding dismissal of the application on the grounds of no jurisdiction by the Polish court was accepted, it was still being proceeded, not from the outset as a new case.
There is no doubt that the Polish court was conducting the case since 2/6/16 and on 6/6/16 an application to secure the claim was filed … I would like to stress once again that the Polish court had every right to hear an application to secure the claim of 6/6/16 to establish the place of the children residence with their mother without serving the copy of the application to the father of the children.
In stating the procedural rules I am confident that the English court was not the first to acquire jurisdiction in this case. The father of the children initiated the proceedings before the English court on 4/7/16 and the case concluded on 18/7/16. It should be noted that the mother successfully submitted an application on 2/6/16 (and application to secure the claim on 6/6/16) registered under file signature VIII Nsm 610/16. Although originally, on 14/7/16 the District Court [in Lodz] dismissed the application on the grounds of no jurisdiction, but once the complaint was filed by the mother it was accepted pursuant to article 395(2) of Civil Procedure Code followed by a judgment on security for claims on 5/8/16 it was within these proceedings (which cannot be considered as new proceedings once a complaint was filed accepted by the court). From a purely formal approach it has to be noted that the case was still being dealt under the same file signature."
(The reference to "securing the claim" is to be understood as an application for interim custody or residence, which can be awarded ex parte.)
"(a) The Polish court was not seised until this date [i.e. 1 August 2016] in the place of residence case. The application of 2 June 2016 as well as the other documents filed in this case have never been delivered to the father …
(b) Yes, the English court was first seised with an application regarding matters of parental responsibility, given that an application was issued on 4 July 2016 and that later an order was given out on the 18 July 2016 after having heard both parties."
"Please explain in detail what the relevant legislative provisions are in Poland governing the steps that must be taken regarding service in accordance with article 16 of BIIR for the Polish court to be seised with an application in respect of matters regarding parental responsibility. In particular, what are the respective obligations upon (a) the court and (b) the applicant regarding service of the application and any supporting documents upon the respondent."
"Therefore, according to provisions of the Polish law, it is the court that serves the writ of summons, but only after all the formal requirements are met by the applicant. The moment the writ of summons is delivered upon the defendant is the moment the court is seised"
He cites article 206(1) of the Code of Civil Procedure as requiring this in a case such as this.
"the court seised (submission of the application) (sic) is the date the letter was filed in court (deposited at the post office), not the date the copy was received by the other party."