England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		2nd March 2012

MR. JUSTICE BAKER:

1.   These proceedings concern A born on 25th June 2009 and therefore now aged two and three quarters.  The full background is set out in a judgment I delivered on 16th September 2011 and, for the purposes of this further judgment, it is only necessary to summarise the history up to that date before setting out the subsequent events in a little more detail. 
2.  The father of A is from Kazakhstan and the mother from Poland.  They met at university in Poland, lived together for a number of years, but never married.  In 2004 they moved to Barnstable in Devon, where they both obtained employment.  On 24th June 2009 the mother gave birth to A, their only child.  A few months later the relationship broke down.  Fearing that the mother would remove A from the jurisdiction, the father started proceedings in the Exeter County Court and obtained ex parte a prohibited steps order, but, subsequently, that was discharged.  A residence order was made in favour of the mother who was permitted to remove A to Poland for a three week holiday on an undertaking to return A to this jurisdiction thereafter. 
3.  At the conclusion of that period, however, the mother did not return A.  The father took proceedings in this country and obtained a declaration that A was habitually resident in England and Wales.  He also started proceedings in Poland under the Hague Child Abduction Convention.  On 16th February 2010 the Polish Court of first instance in those proceedings ordered the mother to return A to England and Wales.  She, however, appealed against that decision and on 24th September 2010 that appeal was successful.  Subsequently, the England and Wales Child Abduction Central Authority formally notified the parties of the outcome of those proceedings, whereupon the father filed an application under Article 11(6) and (7) of Brussels II Revised seeking an order inter alia making A a ward of court and an order for his return to England. 
4.  In September 2011 the matter came before me at which point the issues were as follows: 

(1) On what legal basis did the court have jurisdiction to make any orders in respect of A?

(2) What order should the court make as to A's future care, residence and contact?

(3) Should the court make a final order, which, under the provisions of Article 10 of Brussels II Revised, would have the effect of terminating the jurisdiction of the courts of England and Wales or, alternatively, an interim order enabling the court to retain jurisdiction until a further review? 

5.  On the first point I concluded, for the reasons set out in my judgment of 16th September 2011, that the English Court had already been seised before the Polish proceedings and the order of the Polish Appellate Court in the Hague proceedings not to return the child to this country and that this court, therefore, retained jurisdiction until the applicable requirements of either Article 10(a) or 10(b) of Brussels II Revised were satisfied.  On the facts the requirement of Article 10(a) was not satisfied and, whilst I found that the first three requirements of Article 10(b) were satisfied, I found that the fourth requirement was not because there was as yet no "judgment on custody that does not entail the return of the child within the meaning of Article 10(b)(iv) of the regulation" as explained in the various authorities analysed in my earlier judgment. Accordingly, at that stage the court had jurisdiction to make orders concerning A's future care, residence and contact under which the child's welfare was the paramount consideration and all the powers available under the domestic law were open to the court. 
6.  Secondly, I rejected the father's application for an order for the return of A to England.  On the other hand, I declined to make a final residence order - that is to say a final "judgment on custody" - in the mother's favour at that stage.  The principal reason for declining to make such an order was that I was concerned that the mother's past conduct demonstrated a lack of commitment to sustain a relationship between A and his father through contact and a lack of insight on her part as to the adverse impact her conduct had had on A, in particular on his relationship with his father.  I proceeded to make a detailed order for contact.  That order extended to arrangements for A to have contact both with his father and his paternal grandparents in Poland.  The paternal grandparents live relatively close to the mother in Poland and, in view of the difficulties in establishing contact between A and the father who continued to live in Barnstable, I regarded it as important that there should be regular contact established between A and the paternal grandparents, partly to sustain close links between A and his extended paternal family, but also to provide an environment and basis for contact between A and his father in Poland. In addition I provided for contact to take place in England. 
7.  The specific order I made at the conclusion of that hearing was as follows: 

"Upon the father giving the following undertakings voluntarily and with the benefit of legal advice:

(a) Not to disparage or talk disrespectfully about the mother to the child or encourage any other person to do so.

(b) Not to return the child from the care of the mother, save for the purposes of contact as provided for below. 

And upon the father confirming that the paternal grandparents have made suitable arrangements for the child to sleep at the property;

And upon the mother giving the following undertakings:

(a) To take such steps as she is able to do to withdraw all civil and criminal proceedings against the father in Poland and not to instigate or pursue any other such proceedings against him in Poland or England. 

(b) To provide written evidence to demonstrate that she had taken those steps.

(c) Not to remove the child from Poland or England and Wales, save for the purposes of the contact between the father and child, unless otherwise agreed in writing.

(d) Not to disparage or to speak disrespectfully about the father to the child or encourage any other person to do so. 

And upon the parties agreeing the contact provided for below between the child and the grandparents and the father shall take place in the absence of the mother, save as directed otherwise or save in circumstances where the child's welfare requires the mother to be present and upon the court exercising jurisdiction under Article 10 of Brussels II Revised; and considering that it continues to retain exclusive jurisdiction under that regulation to make orders in matters of parental responsibility in respect of the child;

And upon the orders of the court contained in this order not being a 'judgment on custody' for the purposes of Article 10(b)(iv) of the regulation.  It is ordered that:

(1) The matter be adjourned for review by me on a date to be fixed in March 2012. [In the event, the hearing was listed for 1st March 2012]. 

(2) The mother should make A available for contact with the father and/or grandparents in the following pattern and in the following terms:

(a) For visiting contact in Poland with the grandparents once a week from 10am to 4pm commencing on 30th September 2011 and thereafter certain dates set out in the order and further dates to be agreed between the mother and the grandparents. 

(b) During the periods of visiting contact with the grandparents, A to have Skype contact with the father at a time to be agreed between the grandparents and the father.

(c) A to have staying contact in Poland with the paternal grandparents on two occasions a month as defined in the order and thereafter on dates to be agreed between the mother and the grandparents. 

(d) Save as otherwise agreed, the mother to deliver A to and collect him from the grandparents' property at the beginning and end of each contact.

(e) On one occasion in November 2010 during the staying contact in Poland provided for with the grandparents, the father to have visiting contact with A, subject to his being able to make the trip and to one of the paternal grandparents being present throughout.

(f) A to have contact with his father on five successive days identified as being 25th through 29th December in Poland during Christmas 2011.  During the first three days that contact to be visiting contact with his father from 10am to 4pm, during which time one of the paternal grandparents have to be present and on the fourth and fifth day that contact to be staying contact at the paternal grandparents' property. 

(g) A to be made available for five successive days of contact on dates to be agreed between the parties, those being the father, mother and Guardian, in the UK during the second half of January 2012.  Again, the first three days to be visiting contact and the fourth and fifth day to include staying contact. 

(h) The mother should be present throughout the first day of contact provided for with the grandparents and the father in Poland and with the father in England, unless she deemed it appropriate to withdraw. 

(i) The father to elect the date on which he can travel to Poland for the contact provided for in November.

(j) The mother and father shall agree the dates for the January contact by no later than 1st December 2011.

(k) Prior to the contact taking place in Poland as provided for above, the father shall lodge his passport and any ID card with the mother's Polish solicitors and he shall not remove his passport and ID card from the mother's Polish solicitors until the end of the contact provided for.

(l) The mother shall pay the cost of the contact in England as provided for above.  The father shall pay for the cost of contact in Poland as provided for above.  In the event that the father does not travel to Poland for contact in November 2011, he shall make a contribution of £100 to the cost of contact in England ordered to take place in January 2012." 

I provided further that the Guardian should observe some of the contact provided for in England in January 2012.  I made further directions for the further conduct of the proceedings. 

8.  The matter comes back before me today pursuant to my order in September. In outline the following developments have taken place since the last hearing:
9.  There has been regular contact between A and the paternal grandparents.  According to the mother, there has in fact been more frequent contact with the grandparents than ordered by the court (although the mother states that that contact has not been without difficulty). 
10.  No contact took place in Poland in November because the father was, in the event, unable to take time off work to travel to Poland.
11.  The father did travel to Poland over Christmas and had contact as provided for in my order.  The arrangements for contact were, again, I am told, not without difficulty.  In particular, in breach of my order, the father did not lodge his passport or identity documents with the mother's Polish solicitors.  According to the mother, the reasons given for this failure were that he needed to retain possession of his ID card at all times.  Furthermore, it is said that he asserted that the English Court's order had no effect in Poland.  The father gives a different explanation in his statement claiming that the solicitors refused to receive the card.  In the event, however, contact did take place.  Both parties have set out further concerns about what happened during those contact visits.  It transpired, however, that the father was able to stay in Poland for considerably longer than envisaged at the time of the September hearing.  The mother offered the father the opportunity to have further contact with A during this extended stay and, in the event, A did see his father on some further occasions during that trip. 
12.  The further contact ordered in England in January 2012 did not take place.  On behalf of the mother, it is stated that the mother failed to appreciate that the terms of my order required her and the father to agree the dates in advance and she proceeded to book dates which the father said were inconvenient for his work.  In addition, there were issues concerning the costs of travel.  The father having not visited Poland for the contact in November 2011 was, under the terms of my order, under an obligation to pay £100 towards the mother's costs of travelling to England for the contact in January.  He did not pay this sum.  The visit did not take place and the mother says that she has incurred costs of £500 on that aborted trip.
13.  The mother duly filed a statement in accordance with my directions given at the conclusion of the September hearing, but the father did not file a statement before the start of the hearing before me yesterday.  In fact, he decided to change solicitors shortly before the hearing and it was not until very shortly before the hearing that his new solicitors, Messrs. Lyons Davidson, were instructed on his behalf.  They, I am told, did not have the opportunity to meet their client before the hearing.  They were, however, able to re-engage Ms. Jacqueline Renton who had represented him at the hearing before me in September.  She, likewise, did not have the opportunity of meeting him again before the day of the hearing.  At the start of the hearing Ms. Renton on his behalf applied for an adjournment, but I concluded that it would be possible to resolve issues provided Ms. Renton was allowed some further time for preparation.  I duly adjourned the matter until the afternoon and, at my request, a statement was drafted for the father and signed by him in time for the resumed hearing yesterday afternoon. 
14.  Finally, the Guardian prepared a supplementary report in accordance with my directions.  He noted that he had been unable to observe contact in January, the principal reason for the supplementary report, because it had not taken place.  He recorded, however, that he had been able to speak over the telephone to the father and through an interpreter to the paternal grandparents.  In his report, he informed me that the father told him that he was unwilling to speak to him about how contact had gone, preferring to await assistance from his solicitors.  When asked for his position about the hearing before me in March, the father said to the Guardian:

"My position has not changed and it will stay the same that I want my son back."

He maintained that position, even though the Guardian pointed out that the court had not ordered A's return at the last hearing and was unlikely to do so at this hearing. 

15.  So far as his conversation with the grandparents is concerned, the Guardian reports that they:

"Forcefully made clear how unhappy they are that an order was not made at the last hearing for A's return to the UK.  They describe it as a "silly decision".  They wish the court at the coming hearing to order A's return.  They believe his return is workable and very much in A's interests.  They believe that A should have both parents involved in his life on a daily basis.  They are further concerned that decisions have been made in the Polish and English courts which are based on lies.  They specifically wanted to make clear that their son never assaulted his wife.  Documents provided to the Polish court were false and a new document from the UK police clarifies this."

The Guardian says that it was difficult to talk them in detail about A's contact because they were so upset and angry about the situation.  They were, however, able to tell him that A enjoyed their contact with him and is very happy when he sees them.  They find A to be a particularly well developed child, much more advanced than others for his age.  They reported that they have arranged for him to have Skype contact with his father whenever he visits their property and they describe in positive terms how much A enjoyed that contact. 

16.  When the case resumed in the yesterday afternoon after Ms. Renton had had the opportunity to discuss matters with her client and prepare a statement on his behalf, the parties' prospective positions were as follows:  On behalf of the mother,

Mr. Nick Goodwin invited the court to make a final order - that is to say a "judgment on custody" in the language of Article 10 - incorporating an order for contact that provided:

(1) For contact between A and his father in Poland on such periods as the father is able to visit Poland, including overnight contact;

(2) For contact in England from the summer 2013;

(3) For contact in England from summer 2012 provided the father pays for the mother and A to visit this country; and

(4) For weekly visiting contact between A and his paternal grandparents.

On behalf of the father Ms. Renton invited the court not to make a final residence order, but rather direct that there should be a further period of contact in England to be observed by the Guardian and thereafter a further hearing.  On behalf of the Guardian, Mr. Hinchcliffe initially invited the court to make findings about the culpability for the failure of the contact visit ordered to take place in England in January 2012 and then determine whether or not there should be a final order or an adjournment for further contact to take place. 

17.  After further discussion and submissions in which I invited Ms. Renton to give further particulars on behalf of her client as to the circumstances in which the January contact had not taken place, I came to the conclusion that it was both unnecessary and disproportionate to conduct a fact finding exercise about that matter.  On the case presented respectively on behalf of the mother and father, it was obvious to me that each of them had played a part in bringing about the state of affairs in which the contact as ordered had not taken place.  The mother had, contrary to my earlier direction, fixed the dates and made the travel arrangements without consulting the father.  She had, however, given the father seven weeks' notice of these dates.  Thereafter, the father had not changed his working shifts to accommodate contact, although it had been his position at the September hearing that his employers would be flexible about this matter, and he had refused to accommodate the mother's proposals for contact between 18th and 22nd January 2012.  This is notwithstanding the fact that on his case presented to me it seems to me it would have been possible for him to have contact in the mornings of 18th, 19th and 20th January 2012 before he went to work and contact all day on Saturday 21st and Sunday 22nd January 2012 when he would not have been at work.  Furthermore, he failed to pay the contribution of £100 which I had ordered him to pay towards the mother's travel costs in respect of the January contact visit in the event that the November contact visit in Poland did not take place.  He explained that he was unable to make that contribution because of financial difficulties. 
18.  In view of these admitted facts, there seemed to me to be little point in conducting any further enquiry as to the cause of the failure in the January contact order. 
19.  In order to assist me making my decision as to the right course, I asked the Guardian to give brief oral evidence.  He expressed concern that the father, because of his ongoing wish to have A returned to this country, might not have the necessary motivation to make contact work.  He said that he had not seen the father trying to make contact work.  He had heard, for example, that the father had refused to make a financial contribution, not only to the mother's visit to England in January 2012, but also to a contact visit taking place this week when the mother was coming to England in any event for this hearing.  The father's case is, as I have said, that he was under financial constraints.  He said that his finances had been severely affected by a demand to pay rent arrears immediately and by the cutting off of overtime, which reduced his income. 
20.  In contrast to the lack of evidence about the father's motivation, the Guardian acknowledged that the mother had apparently gone beyond the order for contact by agreeing to additional visits by the father during his extended stay in Poland over Christmas.  When cross-examined by Mr. Goodwin, the Guardian said that he was unaware of any evidence that the mother had obstructed contact since September.  Based on what the mother had done since September, the Guardian expressed the view that she had fulfilled her responsibilities. 
21.  It remained the Guardian's view, however, on balance that the court should direct a further period of contact in England which could be observed by him.  He explained that the purpose of such an order would not be for it to be observed, but rather that there would then be contact in this country which the Guardian has consistently argued is very much in A's best interests. 
22.  In closing submissions Mr. Goodwin reiterated the mother's position that there should be a final order at this point, including provision for contact that represented the baseline for the future.  He emphasised that the mother had been accommodating and flexible about contact and that the court could conclude that she would continue to be so, but that she and the father were constrained by financial circumstances. 
23.  In her closing submissions, Ms. Renton reiterated her position that there should be an adjournment for a further contact in England.  She suggested that, if the court were to order the mother to attend a further hearing, the Legal Services Commission would fund the cost of the travel and that would enable the mother to come to England and Wales and that contact could take place before that hearing. She said that the father was willing to pay for A's travel costs for such contact, but not able to pay for the mother's travel.  
24.  Ms. Renton submitted that, in assessing the mother's commitment to contact, the court should consider developments since September in the light of the long history and reminded me of the mother's lack of commitment towards contact and my finding that there had been a lack of insight on her part about sustaining A's relationship with his father. 
25.  In making my decision I apply the following principles:

(1) Section 1(1) of the Children Act 1989 applies.  The child's welfare is my paramount consideration.

(2) Various factors on the welfare checklist in section 1(3) are of particular relevance here, notably A's emotional needs including his need for a secure home and for a relationship with both parents and his extended family; the capacity of his parents to meet those needs; and his background and cultural heritage.

(3) In particular, it is axiomatic that all children should grow up with a relationship with both parents.  A has had a very good relationship with his father in the past and this must be sustained.

(4) Any delay in making a decision about the child's welfare is likely to be inimical to that welfare.

(5) On the question of jurisdiction, the scheme of Brussels II Revised incorporated into English law is that jurisdiction should ordinarily rest with the Member State where the child is habitually resident.  The regulation does provide for certain exceptions.  As considered at length in my previous judgment, one particular exception is made in cases of child abduction.  In such cases, where a child has not been returned following a wrongful removal or retention, the courts of the country from which the child was abducted retain jurisdiction for a period until the provisions of Articles 10(a) or (b) are satisfied.  It is important, however, to note that the terms in which Article 10 are drafted clearly envisage that the jurisdiction thereunder will be limited.  It is not intended that the jurisdiction should be exercised indefinitely, but only until the court makes a judgment for custody that does not entail a return home.  As Ms. Renton accepted, custody in this context means residence, not a wider concept encompassing other aspects of parental responsibility.  It would be contrary to the scheme of the regulation for the courts of the country to which a child had not been returned to retain jurisdiction for longer than necessary to determine the question of residence.  

26.  In my judgment, the time has now arrived to make a residence order amounting to a judgment on custody within the meaning of Article 10(b)(iv) for the following reasons.  First, the reason why I refrained from making such an order in September was that the mother's actions up to that point had not demonstrated that she was committed to contact.  I did not think it right to make a final order until satisfied that the mother would take all necessary steps to ensure that A had contact with his father.  I am satisfied that, in the intervening period, the mother has taken all reasonable steps to ensure that A had contact with his father.  In particular, she has offered him all contact ordered over Christmas plus additional contact during the father's extended stay after Christmas.  She was not to blame for the fact that no contact took place in November 2011 in Poland.  She has accommodated contact with the paternal grandparents on a regular basis.  So far as the aborted January visit to England is concerned, although she arranged flights before getting the father's agreement to the dates, I do not regard this as a serious omission that calls into question her commitment to contact.  I judge that the father ought to have been able to alter his shifts after being given seven weeks' notice of the dates if his employers were as accommodating of his circumstances as indicated at the earlier hearing; and, if not, then he should and could have agreed to contact going ahead between 18th and 22nd January 2012, albeit on a more limited basis.  Although he would not have had as much contact as ordered, he would have seen A on several days and this would unquestionably have been in A's best interests.  As it is, the father failed to agree to that and failed to pay his contribution to the travel costs as ordered by the court. 
27.  Secondly, in view of my finding that the mother's commitment to contact is established, I do not consider that an adjournment simply to permit contact to happen in this country on one further occasion over one further period of a few days is either necessary or an appropriate process given the policy of the regulation to which I have referred above.  Once the court is satisfied about residence arrangements, it should make the order accompanied by an order for contact, which can then be registered and enforced via the Brussels II Revised mechanism. 
28.  Thirdly, there is some evidence that the fact that no final order for residence has been made is creating uncertainty.  Both the father and the paternal grandparents indicated to the Guardian that they would like the court to reverse its decision concerning where A should live and direct that he should return to England immediately.  There is no reason for taking that course and, in my judgment, A may be suffering as a result of the uncertainty.  The father and the grandparents need to accept that the courts in both Poland and England have made a decision that A is staying with his mother in Poland. 
29.  Finally, insofar as there may be ongoing issues about contact which have to be resolved by a court, it is manifestly obvious that they will be best dealt with by the Polish courts; that is where A lives with his mother.  Contact is likely to centre round his paternal grandparents who also live in Poland.  It is much easier for the father to travel to Poland where he can stay with his parents, if necessary, than for the mother to come to England, either bringing A with her or arranging for him to be cared for by others. 
30.  Accordingly, I propose to make a residence order in this court plus a detailed contact order on terms providing for contact in England and Poland in terms that I hope counsel have now agreed or, if not, will shortly agree.  Failing such agreement, I will adjudicate upon the details of the contact arrangements. 

(LATER)

31.  My conclusion on contact is as follows:  I conclude that, so far as the grandparents are concerned, to deal with them first that there should be visiting contact once

a week from 10am to 6pm plus reasonable staying contact on dates and times to be agreed between the mother and the grandparents.  I make that order in the light of the fact that such evidence as I have persuades me that, whilst there has been some difficulty about staying contact, the mother and grandparents, despite their differences, have been able to negotiate a flexible arrangement about staying contact and that seems to me to be in A's best interests.

32.  During the contact visits with the paternal grandparents, there should be Skype contact with the father from the grandparents' home. 
33.  Turning to staying contact for the future in Poland, the father says that he is unable to afford more than one visit per year to Poland.  His circumstances are constrained and he is unable to afford more.  The order that I make is that contact in Poland shall be as follows:  on one occasion for a period of seven successive days to include two overnight stays on non-consecutive days (I am going to make the same provision for Poland and England; I think it is more straightforward if I do that).  The father to nominate the dates of that visit and inform the mother thereof not less than six months in advance. 
34.  On such further occasions as the father is able to visit Poland, he shall have contact with A over a period of seven successive days to include two overnight stays on non-consecutive nights, provided that he gives not less than 28 days' notice of the dates and that the mother raises no objection within seven days thereafter. 
35.  The father is to bear the costs of travel and accommodation for the Polish visits. 

Contact in England

36.  This is a difficult question.  Both parties have pleaded poverty and I accept that both parties have limited means.   However, it seems to me that the principle of contact in England is important.  It is a point which the Guardian has emphasised throughout his involvement of the proceedings.  England is where the father is living at the moment and that may be permanently.  I accept that the mother has incurred considerable expense, given her limited means, in the aborted trip in January.   I do not consider it proportionate for this court to engage in a detailed enquiry about the parties' capacity to pay, so the order I make is inevitably something of a summary order so far as this aspect is concerned, but I consider that to be proportionate and appropriate in the circumstances. 
37.  Contact will therefore take place in England every summer from 2012 in July or August.  That contact will be for seven days in 2012 and for such period as the parties may agree, but, not, in any event, less than seven successive days from 2013 onwards.  The mother shall bring A to England for the purposes of that contact.  During the seven day period, contact will include two overnight stays on non-consecutive nights. 
38.  The dates of the visits are to be nominated by the mother in 2012 no later than 31st March and in future years no later than 1st January.  The cost of travel and accommodation shall be borne equally by the parties in 2012 and thereafter by the mother. 
39.  I turn to the question of identification documents.  On balance, having been told there is no legal reason why a party should not lodge the documents and having regard to the issues that I see in the Guardian's report about the father and the grandparents' attitude to the judgment, I see no reason why the documents should not be lodged and possibly a good reason why they should.  Accordingly, I direct that the father shall, at the start of each period of contact in Poland, lodge his passport and identification card with the mother or her nominee.