England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London.
		4th December 2015

HIS HONOUR JUDGE BOOTH:

1. Before me is an application for an Order returning A, an 11 year old boy, to his native Poland. A's parents are divorced. Both lived in Poland prior to A's mother bringing him to the North East of England in June 2015. A's father seeks an Order for A's immediate return pursuant to the Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980 ("the Hague Convention") or alternatively under the inherent jurisdiction of the High Court.
2. I gave an earlier short judgment where I set out the procedural timetable and decided how I would conduct this hearing. These are summary proceedings by nature. I determined I would deal with the case on submissions on the evidence filed and that I would hear some evidence from the CAFCASS officer, Miss Jolly. In fact she really added very little to what was in her helpful report. I have heard submissions from Miss Renton on the facts and the law. I have attempted to take A's mother through Miss Renton's submissions on the facts and the law and invited her to tell me anything else that she thinks is relevant.
3. I am acutely aware that there is no equality of arms today. I have tried to ensure that A's mother has dealt with all the points that need to be dealt with and I have encouraged her to tell me whatever it is she wants, although I appreciate that a lot of what she has told me has strayed into the area of evidence.
4. Let me go back to the factual history. At the conclusion of the divorce proceedings in 2011 the Court in Poland made provision for A and his older sister to live with their mother and for A to spend time with his father. I will deal more particularly with the terms of that order when I look at the expert evidence. Within a relatively short time, that order being made in May 2011, the circumstances on the ground were not those anticipated in the Order. From later in 2011, to a date in 2013, A's mother worked in Italy. His father was working in Germany. I am told it was his father's absences working in Germany that had been the primary cause of the marriage breaking down.
5. During 2013 A's mother returned to Poland. By that stage it seems that her relationship with her daughter, S, had broken down, and mother's family unit was split. The parents give different accounts of the amount of time that A was seeing his father.
6. His father says that it was regularly at weekends and then for longer spells between his trips to Germany.
7. His mother says that contact with his father was infrequent as his father was not bothering with him.
8. The only other potential source of information would be A himself. Miss Jolly, the CAFCASS officer, spoke to A about his time in Poland. It was very clear from a number of the answers that A gave that he was giving Miss Jolly his mother's version of events. There may be any number of reasons why that was the case, but it has the effect that I can place little reliance, if any, on what A says about his time at home.
9. The next matter I must consider is that both parties have a case to run. Part of mother's justification for bringing A to England was the lack of a relationship with his father. A's father on the other hand wants A returned to Poland and knows that the quality and extent of his relationship with A will inevitably be an important factor.
10. What little pieces of evidence are there that are incontrovertible that might help me? Firstly, it is clear that A's mother decided that she was entitled to make unilateral decisions about A irrespective of whether his father agreed with those decisions. So, for example, it is clear that A's schooling was in her view something that A's father was not entitled to be consulted about. She gave notice to A's school without reference to A's father. It is equally clear from a letter she wrote to the Polish Divorce Court on the eve of her departure with A to England that she knew A's father did not consent to A's removal to England because she said so in so many words in the letter.
11. In so far as A's mother was taking those unilateral decisions and not consulting his father, knowing as she did that he would object and did object to A's removal, I must conclude that she was engineering a situation where A's father would not be able to raise an objection because A would have gone. Does any of that mean that A's mother was necessarily being untruthful when she describes A's relationship with his father? The answer is not necessarily but it would sit more easily with a case that she has exaggerated the position by minimising what she says was the contact between A and his father when the reality may well have been different.
12. Doing the best I can on the material I have I think it more likely than not that the truth lies somewhere between the two accounts, probably closer to A's father's account, but I reject the notion that A's father was a figure absent from A's life.
13. It is impossible for me to say with what frequency A saw his father. On balance I think it likely that there was no fixed pattern because life in A's household appears not to have followed a fixed pattern. I do find that there was an established and regular relationship that A had with his father.
14. The question of whether A's father had a right of veto under domestic Polish law, and therefore a right of custody under Articles 3 and 5(a) of the Hague Convention, was a matter put in question form to Dr. Kasinska Berchinska whose report is dated 3^rd December 2015. She was instructed to advise the Court and her report is straightforward and clear. She sets out the position in Poland as follows:

"By the Divorce Order of 16^th May 2011 the Regional Court of Legnica dissolved the marriage between Iwona Armatys Pietka and Aleksander Pietka. Upon mutual motion of the spouses the Court did not decide which of the spouses was guilty of the breakdown of the marriage. The Court entrusted execution of parental responsibility over the children, including A, to mother, limited execution of the parental authority of the father to general insight in upbringing and education of the children, notably to co-signing about the choice of the education, and professional occupation, and medical treatment of the child in case of his serious illness. The Court decided not to decide on contacts of the father with the children after divorce and the accommodation of the parties."

15. It is difficult for me to draw a determinative inference from the failure of the Polish Court not to define contact or where A should live. It seems to me the most likely reason is because there was no dispute between the parents about that aspect of the case, but that would be equally consistent with them inviting the Court to leave it open to them to make their own decisions as and when they needed to, even if at the point the order was made they did not necessarily have agreement or disagreement.
16. The expert report considers at length decisions of the Supreme Court of Poland dealing with cases that raised issues similar to A's. The effect of the decisions is summarised on page eight of the expert's report where she says this:

"In light of the Supreme Court's guidance presented above, in my opinion the crucial importance to decide is whether or not the father has the right of veto to the child's relocation is establishing if permanent change of the child's place of residence will make it impossible for the father to contact the child in the way resulting from the wording of the Order of 16^th May 2011. If the answer to this is positive the father would have the right to prevent the child's removal from Poland. Therefore, it will be possible to confirm that mother has not the right to remove the child from Poland without the father's consent."

She goes on:

"In my opinion the facts of the case concerning the contacts' issue may be crucial in determining whether the father had a right of veto. Assuming that father's contacts with the child were regular and in principle included spending time with the minor child every or almost every weekend the father had the right of veto against the child's relocation abroad. If, on the other hand, those contacts were irregular and rare, as it has been described in the mother's statement, on this ground one may assume that relocation would not affect father's contacts' execution, the father would not be entitled to such a right of veto."

So what the expert is describing are two extremes of a continuum. On the one side, regular and frequent contact being exercised where relocation would prevent that happening and secondly, irregular and rare contact, where relocation would not necessarily prevent that happening.

17. I have concluded that the truth lies somewhere in-between. I have to decide where on that continuum between those two extreme positions the cut-off point is. In other words whether the right to veto would and conversely would not apply?
18. My conclusion is that the facts as I have found them place this on the side of the continuum where the veto would apply. I say that for these reasons. Firstly, I am satisfied that contact was more frequent than the mother has described it. Secondly, it had its own regularity in that it fitted with father's work pattern. Thirdly, it is clear that that contact was meaningful. Fourthly, it included a holiday in 2015 for which A secured a passport which required both his parents to co-operate.
19. So applying the facts as I find them to the law as I understand it from the expert my conclusion is that A's father did have a right of veto.
20. I note in passing, although it is not part of my decision making process as the expert does not rely on it, that A's father was given an express right to co-determine decisions about A's education. That has been removed from him by the unilateral decision taken by A's mother to terminate his education in Poland and register him at a school in England.
21. A's parents agree that prior to his removal to England he was habitually resident in Poland. He had been brought up in Poland from birth. He lived with his family in Poland. That included his wider family. His maternal grandparents were next-door to the family home. He was with his sister and with both his parents, albeit not together.
22. The next question I have to determine is whether there is any evidence that A's father consented to his removal to England? The evidence is all the other way. As I have already mentioned, A's mother wrote a letter to the Divorce Court in Poland saying in terms that A's father did not consent to his removal to England. In writing that letter I am satisfied that she was setting out a factually accurate position.
23. Next, I must go on to consider whether A has any objections to being returned to Poland? His mother tells me that he does object. Whilst he would be happy to go to Poland during his holidays he would not want to be sent back. I must however rely on the evidence from Miss Jolly of CAFCASS who was clear following her discussions with A that his feelings were really consistent with not objecting. She recognised that it was not for her to decide whether what he said amounted to objection, but she could point to nothing in her report that amounted to a clear statement of objection by A.
24. It is clear from paragraph 21 of her report that when she was discussing A returning to Poland forever, A's response was couched in terms of a two month stay with his dad in the summer. Equally, later on in that paragraph A is recorded as saying this to her:

"I can wait in Poland until it all finishes. If I need to go then we will go to Poland and wait until it finishes."

She records him as saying that he would not mind being in Poland for a little while so he can see his friends and his grandma. But then the expectation was when the whole case finishes he could come back to England.

25. I bear in mind that his views to Miss Jolly were conveyed through the medium of an interpreter, which is difficult enough for an adult, and must have been more difficult for an eleven year old boy. Nonetheless I am satisfied given A's age and understanding that A was not raising an objection to returning to Poland.
26. Let me put all of those matters in their legal context. Under Article 3 of the Hague Convention A was habitually resident in Poland. I am satisfied that the effect of Polish domestic law on the terms of the order that was made consequent upon A's parent's divorce was that the father's contact with A amounted to a veto so that without A's father's consent, which his mother knew she did not have, he should not have been brought to England.
27. Looking at Article 13, as I have already indicated, there was no consent. Looking at Article 13(b) A is not objecting to returning to Poland.
28. I have a residual discretion as to whether I should order A's return. There is a list of matters which Miss Renton relies upon and says I should take into account:

• The speed with which A's father has acted.

• This is a clear case of abduction.

• A is Polish and has lived his whole life in Poland up until June 2015. His family are in Poland; his sister, his grandparents and his father.

• Whatever the reasons may be, contact with his father has not taken place in any meaningful sense since A came to this country.

• A can hardly be said to be settled in his school here given that he has special provision made for him to help him with the language as he speaks next to no English.

Accepting all of those points I can see no basis on which I could exercise that discretion to allow A to stay.

29. That process leads me to the inevitable conclusion that I must order A's return to Poland.
30. In so doing I am faithfully applying the purpose of the Hague Convention, which was to ensure the swift return of children to their place of habitual residence in the event of their removal when they should not have been so removed.
31. Miss Renton raised in her skeleton argument an alternative route to the same result, namely the inherent jurisdiction of the Court where I would have to decide whether it was in A's best interests to be returned. The factors in play would be the same factors I have considered in relation to the residual discretion I have not to order a return.
32. I need not consider the inherent jurisdiction but it does strike me that the question of where A's future should be, whether it is in this country, or in Poland, would be far better determined by the Polish Court, the Court that made an order when his parents divorced, the Court that is local to his family, and the Court that can investigate his circumstances in Poland in a way that this Court simply cannot do.

AVTS REF: 6221/H5021