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Cite as: [2016] EWHC 2496 (Fam)

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This judgment was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published. For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.

		Neutral Citation Number: [2016] EWHC 2496 (Fam)
		Case No: FD16P00166

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

03/08/2016

B e f o r e :

THE HONOURABLE MR JUSTICE MACDONALD
____________________

Between:

	BK	Applicant
	- and -
	NK	Respondent

____________________

Ms Clare Renton (instructed by The Family Law Company) for the Applicant
Mr Robin Barda (instructed by Access Law) for the Respondent

Hearing dates: 28 and 29 June 2016
____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Mr Justice MacDonald:

This is an application under the Child Abduction and Custody Act 1985. These proceedings engage the provisions of The Hague Convention on the Civil Aspects of International Child Abduction 1980 (hereafter "the Convention") and Council Regulation (EC) 2001/2003 of 27 November 2003 (hereafter BIIA).

In this matter I am concerned with RK, who was born in 2010 and is now aged 6. The applicant father, BK, seeks an order for the immediate return of RK to the jurisdiction of Poland following his removal by the mother, NK, from that jurisdiction on 16 May 2015.

The following matters are not in dispute between the parties for the purposes of determining this application:

i) At the time the mother removed RK from the jurisdiction of Poland he was habitually resident in that jurisdiction for the purposes of Art 3 of the Convention;

ii) RK was below the age of 16 at the time he was removed from the jurisdiction of Poland and remains so;

iii) The father did not consent to the removal of RK from the jurisdiction of Poland;

iv) At the date the father commenced proceedings RK had been in the jurisdiction of England and Wales for less than 12 months;

v) The polish court is seized of proceedings concerning the welfare of RK, which proceedings are ongoing.

Within this context, the mother seeks to defend the father's application for summary return on two grounds. First, the mother contends that the father did not have 'rights of custody' in respect of RK for the purposes of Art 3 of the Convention as defined by Art 5(a) of the Convention. If the father did have 'rights of custody' the mother further contends that there is a grave risk that the return of RK to the jurisdiction of Poland would expose RK to physical or psychological harm or otherwise place him in an intolerable situation and that, accordingly, the defence provided by Art 13(b) of the Convention is made out.

BACKGROUND

The background to the father's application is as follows. The father was born in 1986 and is an Armenian national. He contends that he has lived in Poland since he was 7 years of age on a temporary residence card. The mother was born in 1985 and is a Polish national. The parents married in Armenia in January 2009. RK was born in Poland and is a Polish national. They divorced in Poland in 2012.

It is important to note the terms of the verdict by which the Polish court granted the parents' divorce on 7 February 2012. Whilst there were further proceedings following that verdict (specifically proceedings in 2012 and 2015 regarding allegations of physical abuse by the father that were dismissed due to lack of evidence), both parties accept that the verdict of that date is the operative decision of the Polish court when considering the question of 'rights of custody' for the purposes of Art 3 of the Convention. The relevant parts of the verdict of 7 February 2012 (as translated) provide as follows in respect of the mother ('the plaintiff') and the father ('the respondent'):

"1. Terminates a marriage concluded on 26 January 2009 in the Registry Office of [location given] with [case number given] of plaintiff NK, family name E and respondent BK by divorce.

2. Entrusts the plaintiff exercising parental responsibility over the minor child of the parties RK born on [date of birth given] in [location given], providing the respondent with the right of co-deciding in essential, in issues concerning the child relating to choice of school, occupation, treatment way, leisure organisation.

3. Manages contacts of respondent BK with minor son RK in a way that he is allowed to take the child from 10.00 to 18.00 each Wednesday and Saturday of a month with a possibility to be with the son in place of present child's residence with an obligation to take the child back to the mother after completed meeting including an obligation of the plaintiff to make the child available in the given periods of time.

4. Obliges the parties to bear costs of the living of the minor son and due to causing the mentioned costs hereby grants maintenance against respondent BK for minor RK in the mount of PLN 400 (four hundred) payable personally in advance to NK until the 10 day of each month including statutory interest in the event of delay of any payment – starting from the verdict enforcement."

The parties accept, and it is clear from the expert report on Polish law that has been filed and served in this case, that the term "occupation" in the verdict of 7 February 2012 is used in the sense of type of work rather than place of residence, and that the phrase "treatment way" concerns decision making in relation to medical treatment for RK. The mother contends that the father's right to remain in Poland was conditional upon him proving that he paid financial support for RK pursuant to the verdict and remained in employment.

The father states that following the verdict of 7 February 2012 the mother sought to impede his contact with RK, although the father continued to spend time with RK pursuant to the verdict of the Polish court. By contrast, the mother alleges that the father failed to respect the order of the court and would attend for contact with RK as and when he wanted, would on occasion fail to return him on time and would bully her and intimidate her. The mother made applications to the Polish court to restrict the time the father spent with RK but the papers before this court indicate that such applications were not pursued.

Following the parents' divorce the mother married an Algerian national, BD in 2013. The father contends that during this period the mother was drinking alcohol excessively and was taking anti-depressants. This is denied by the mother.

On 22 September 2014 the mother made an application to the Polish court for an order permitting her to apply for a passport for RK, she contending that the father was unreasonably refusing to give his consent to a passport being obtained for RK. It would appear from the application that the mother contended that the passport was required in order that she could take RK on holiday to see BD's family in North Africa on 6 November 2014. On 20 October 2014 the mother made a further application to the Polish court to restrict the father's contact for RK in circumstances where she contended the father was "not interested in having a relationship with RK" due to alleged drug use.

At the final hearing of the mother's application for permission to obtain a passport for RK on 27 April 2015, at which the mother was legally represented, the father contends that the Judge indicated that the mother would require the father's consent to travel abroad for the purpose of a holiday and that the Court considered that the mother should be given permission to obtain an identity card for RK for the purpose of travel. The mother contends that the court gave her permission to apply for a passport, replacing the need for the father to give his consent to the same. The mother states that it was her understanding that as the father's consent to the issue of a passport was dispensed with she did not require his permission to leave Poland. The father contends that at no point at the hearing on 27 April 2015 did the mother inform the court of a plan to take RK to England.

Within this context, I pause to note that the father has produced a Facebook entry from a beauty salon in England which appears to show an announcement made on 13 April 2015, some 14 days before the hearing in Poland on 27 April 2015, that the mother would be joining the salon, that entry stating that "we would like to let you know that soon a qualified, experienced and fabulous manicurist [NK] is joining our team". It was not suggested on behalf of the mother that this entry related to someone else. In the circumstances it would appear that the mother had already secured a job in England prior to determination of application for permission to obtain a passport for RK on 27 April 2015, which she had stated was required for a holiday in North Africa and at which hearing she did not mention a plan to travel to England.

On 30 April 2015 a psychological assessment of RK was completed. The provenance of the assessment is unclear, although it appears to have been obtained at the behest of the mother and was compiled following a three-hour observation of RK during which time the mother was interviewed, RK was asked questions and "drawing tests" and "tests of personal processes" of RK were administered. I am satisfied that the conclusions reached by the psychologist (namely that "the tests prove that the father abuses parental authority", that "The counterbalance to this situation is the mother, whose actions and position fulfil the son's expectations and support the child's development" and that "it may be considered that in the current situation the mother is guarantee of the performance of custody over minor RK") must be treated with significant caution in circumstances where it is clear that this opinion is based solely on the report provided by the mother and does not appear to have involved any contact with the father.

As to the account given to the psychologist by the mother, she reported that the father was possessive and prone to violent behaviour (including beating the mother and knocking her teeth out) in addition to being involved in drugs and criminal behaviour. The mother related that the father initially paid PLN 500 per month in child maintenance but that this had not been forthcoming for 13 months. The mother also reported that her own childhood was difficult, that he parents had divorced when she was aged 10 and that she was obliged to care for her siblings, which task often exceeded her capacity to undertake it. The mother reported that she had suffered post-natal depression for a period of 6 months following RK's birth and had taken anti-depressants at this time. The mother denied drug use or excessive alcohol consumption.

On 19 May 2015, some 3 weeks after the court had permitted the mother to obtain an identity card to permit RK to be taken on holiday, the father attended the property of the mother to collect RK for an agreed contact. There was no answer at the door. The father was subsequently informed by the mother's husband that the mother and the child had left the property and that their belongings had been removed. The following day the father leant by way of a text from the mother that the mother had travelled to England with RK but would be returning "in a few weeks".

The mother states that she informed the Province Office in Poland of her intention to leave and informed the father and provided the father with her contact details. It is plain however that this was done only the day before she departed for the United Kingdom, which the mother confirms took place on 16 May 2015.

In her letter to the Province Office dated 15 May 2015 the mother alleged that the father regularly failed to meet his obligations to RK, failing to pay child maintenance and starting arguments about contact. The mother further alleged that the father "regularly acts aggressively both towards our son, myself and the environment" and that he teaches RK anti-social behaviour. The mother alleged that the father often gave the impression of being under the influence of drugs, that he regularly threatened the mother with violence and threatened to kidnap RK and that he prevented her from obtaining a passport for RK, necessitating an application to the court. The mother contended that these matters had had an adverse effect on RK and that they were "intensifying". She contended she was anxious for RK's health and safety. She stated that when the father's parental rights had been terminated it was her intention to stay in England permanently. She made no mention of employment in England.

In her letter to the father also dated 15 May 2015, the mother stated that she had "left with RK for an unpaid holiday to England" and repeated the allegations she had made to the Province Office. As I have noted, she stated she would arrange a telephone number in the United Kingdom for the father to contact her on, identified that she would remain near London and undertook to facilitate contact between the father and RK should he come to England and agreed that the father could offset the cost of his travel to London against any arrears of maintenance. The father denies receiving this letter. On 27 July 2015 he applied to the court in Poland to enforce his contact with RK.

In her first, undated, statement the mother states that in May 2015 she decided to leave Poland for England in order to ensure the safety of herself and RK. The mother seeks to emphasise the fact that she came to England "out of fear" for her safety and concern regarding the impact on RK of the father's behaviour towards her. The specific reasons the mother gives for removing RK from the jurisdiction of Poland are set out in her fist statement. Again, she makes no mention of employment in England. Her stated reasons can be summarised as follows:

i) From the moment she became pregnant with RK the father was domestically violent to her and restricted her movements from the family home;

ii) The stress of the home situation caused problems during her pregnancy and she was taken to hospital "many times";

iii) Following the birth of RK (at which time the mother had already decided to leave the father) the father's level of aggression increased, resulting in the involvement of the Polish police and the father being given a 'Blue Card' relating to domestic violence;

iv) The father continued to abuse the mother and was involved in crime, including drugs and facilitating illegal immigration;

v) At the divorce hearing the Judge was compelled to call the Police due to the father's levels of aggression;

vi) The mother was the subject of threats at the court hearings from the father and his friends.

By contrast, in her second statement, dated 7 June 2016 the mother states her reasons for leaving Poland as follows:

"[22] When I initially came to the UK, I only intended to stay for one month but I subsequently changed my mind. My relationship with my husband had broken down, as he had indicated that he could not put up with the situation and the abuse we received from the Applicant. He felt that the marriage was at an end and I, therefore, had nothing to return to in Poland.

[23] In the circumstances, I made the decision to remain in England with RK and secure accommodation and employment. I did not hide this from the Applicant. I told him and the Polish Court of my intention."

On 4 September 2015 the mother's application to restrict the father's parental responsibility for RK came before the Polish court. Both parties were legally represented. The mother had provided a letter to the court dated 7 August 2015, which letter indicated that she was living at an address in England. The address provided by the mother was a beauty salon at which the father understood the mother to be working and which had, on 13 April 2015, announced that "we would like to let you know that soon a qualified, experienced and fabulous manicurist [NK] is joining our team". The mother made clear that she had decided to stay in England for some time.

The reasons the mother gives at this point for remaining in England are somewhat different from those she gave to the Province Office and the father for leaving Poland. The mother stated that (i) the father had left the flat in which the family lived and had stopped paying the bills, (ii) that her profession was "very desirable" in England, resulting in many offers of employment, (iii) that she had a good job, (iv) that the benefits and education system in England covered her and her son fully and was "incomparably higher" than in Poland, (v) that the father refused to pay child maintenance, (vi) that he had shown no will to establish contact with RK, (vii) that she was financially self-sufficient for the first time and did not need to rely on the uncertain and humiliating support of friends, (viii) that she was able to repay her debts and (ix) that RK had been accepted into a prestigious school. The mother made no mention of any violent of aggressive conduct on the part of the father or any reference to threats to RK's health or safety from the father. Within this context, at the hearing before the court in Poland on 4 September 2015 the judge informed the father that the mother had communicated with the court and advised that she would not be returning to Poland.

On 4 September 2015 the Polish court adjourned the proceedings and vacated a direction for the parties to attend an expert psychological assessment with RK. On 16 September the mother wrote to the Polish court seeking to withdraw her application to restrict the father's parental authority, which application was agreed by the father.

On 2 October 2015 the father sent a text message to the mother at 22:54 in which he said "Good, you'll be in Poland in about 2 weeks and then I will spit at your face you child theft, kidnapper. You know how many people gave testimony against you you're fucked, you don't know it yet." The father now denies sending this message.

In January 2016 the father states that he was contacted by an acquaintance of the mother in England who reported to him an allegation that the mother's partner had assaulted RK and was not permitted to have contact with either RK or his mother. On the 29 February 2016 at 09:59 the father sent the mother a message on Facebook saying "You scum. I learnt that someone hit the child, I fuck you out. Fuck. I'll fuck you out. Fuck, how could you have let that happen. Fuck, you asshole. You'll regret this. Bitch." The father now denies sending this message.

Within the context of the allegation that RK was assaulted by the mother's partner in England, the court has been provided with disclosure from the relevant Children's Services. That material indicates that three referrals have been made in respect of RK following issues being raised regarding the mother's alleged use of drugs and alcohol and of domestic violence by the mother's partner, NS towards the mother and RK in February 2016. NS has been arrested and charged with three counts of assault against the mother. The Police are further investigating an allegation that NS assaulted RK.

The mother has been advised by social services not to have contact with NS. However, on 7 March 2016 the mother stated that she no longer wished to seek an injunction against NS, saying they were "really good partners". Children's Services have now provided further disclosure indicting that the mother is ten weeks pregnant with NS's child and that, against their advice, is again in a relationship with him. The mother denies this and contends that the pregnancy results from an encounter with an unidentified man. Children's Services are now engaged in further assessing the situation.

On 16 April 2016 the mother contacted the Polish Border Police. The father states that she made an allegation to the Border Police that the father had threatened her (the father denies that he did so) and that, following the mother's allegation, the father was arrested and detained in a deportation centre on 5 May 2016. The mother accepts that she contacted the Border Police but states that this was simply to ascertain the father's immigration status. She further concedes that whilst living in Poland she supported the investigations of the Police and Border Control with respect to the father's immigration status, including providing accounts of the physical abuse she says she suffered at the hands of the father, the parents' divorce and what she contends is his failure to support RK financially, the mother contending the father is 14,000 PLN in arrears.

It is in any event common ground that on 20 June 2016 the father was deported to Armenia and is now living with family in Armenia. The father informs Ms Renton that has instructed an immigration solicitor in Poland and has lodged an appeal against his deportation from that country on the basis that his mother and sister live in Poland, that Poland is where he grew up and was educated and that his son is Polish.

In a further letter to the Polish court dated 5 May 2016 the mother gave a further, and again slightly different, explanation of her reasons for leaving and then remaining out of the jurisdiction of Poland, stating that she had originally wanted to be in England only for the duration of the Polish proceedings because the father intimidated her but that she had decided to stay.

The mother has now established a nail salon business in England and RK has commenced schooling. His school report states that RK is a bright and enthusiastic child who is polite and friendly, confident in the use of English language and happy to make friends. He has what is described as a "strong friendship group". On 5 May 2016 the mother sent a further application in the Polish court to terminate the father's parental responsibility (as distinct from an application to remove RK permanently from the jurisdiction of Poland).

Finally, with respect to the progress of these proceedings, subsequent to the father learning at the hearing on 4 September 2015 that the mother intended to remain in England with RK, there followed a period of delay caused by the father's application to the Central Authority in Poland lacking the necessary translations. The father's application was ultimately forwarded by the Polish Central Authority on 7 March 2016. The father's application under the Child Abduction and Custody Act 1985 was issued on 5 April 2016. Following the granting of a location order on that date the mother and child were located at Gatwick Airport on 16 April 2016 and their passports were seized.

THE EXPERT EVIDENCE

The court has in this case the benefit of a jointly instructed expert report on Polish law. The expert has provided a substantive report dated 24 May 2016 and an addendum report dated 15 June 2016. The relevant contents of those reports are not substantially disputed by either of the parties, although each seeks to derive different conclusions from those contents. It is important to note that the expert's report, perhaps as a result of the process of translation, is in places somewhat opaque and even, on occasion, contradictory. Both parties made clear however that they did not seek a second expert report nor did they seek to put further questions to the expert.

With the foregoing caveat regarding the clarity of some aspects of the expert's conclusions, I am satisfied that the following propositions regarding the legal position under the law of Poland relevant to the decisions that fall to be made by this court can safely be extracted from the expert's report:

i) The concept of 'parental authority' in Polish law is not defined in one provision but its meaning stems from the interpretation of Arts 92 to 112 of the Polish Family and Guardianship Code [Kodeks rodzinny i opiekuńczy].

ii) Art 93 of the Polish Family and Guardianship Code provides that parental authority shall be vested in both parents.

iii) Art 95 of the Code provides, inter alia, that (a) parental authority includes, in particular, the obligation and the right of parents to perform the custody of the person and property of the child and the child's upbringing, whilst respecting the child's dignity and (b) parental authority should be exercised as required by the child's welfare and the public interest.

iv) Art 97 of the Polish Family and Guardianship Code provides that if parental authority is vested in both parents, each of them shall be obliged and shall have the right to exercise it.

v) The verdict of 7 February 2012 entrusted parental authority over RK to the mother and conferred limited parental authority on the father.

vi) The verdict of 7 February 2012 leaves the father with the right to co-decide on important matters in respect of RK regarding choice of school, choice of profession, methods of medical treatment and organisation of leisure time. Polish case law and doctrine together assume that these matters are important matters beyond ordinary, everyday life.

vii) In matters not specified in the verdict of 7 February 2012 the father cannot exercise parental authority and the right and obligation to perform this lies only with the mother.

viii) However, under Polish law a mother who has unlimited parental authority cannot decide to change the place of residence of the child in an unlimited way. This decision requires the consent of the child's father, even if his parental authority is limited, as confirmed by the resolution of the Polish Supreme Court [Sąd Najwyższy] of 10 November 1971 Reg. No. CZP 69/71 which held that:

"…in order for a minor's place to residence to be abroad with the parent whom the court entrusted with parental authority in the divorce decree and in the case where the other parent whom the court entrusted with the supervision of the child's upbringing did not make representations expressing consent for the child to leave, the permission of the Guardianship Court [Sąd Opiekuńczy] is needed".

ix) Within this context, the consent of the parent with limited parental authority is needed for the child to go abroad and a mother holding unlimited parental authority has a duty to obtain the father's consent for changing the place of residence of the child. The father has a right to give or withhold his consent. If the father withholds his consent but it is in the child's best interests to move abroad the court will consider the father to be unjustifiably withholding consent and will permit the other parent to move abroad with the child.

x) This position is reinforced by the fact that, under Polish law, if one parent does not consent to an application being made for a passport for the child, the consent of the court is required in substitute for the consent of the parent who has withheld their consent. This demonstrates that the father's consent to a permanent change of residence "is even more necessary". The consent of the court to apply for a passport does not include permission to remove the child permanently from the jurisdiction.

xi) Further, the mother was obliged to obtain the consent of the father to remove RK to a British school. If the father had withheld his consent, then the mother would have been obliged to obtain the consent of the court.

The jointly instructed expert also gives his opinion on whether the father had 'rights of custody' in respect of RK for the purposes of Art 3 of the Convention, answering this question in the negative. However, this question is a matter for this court to determine having regard to the expert's advice on the state of the relevant law in Poland (see Kennedy v Kennedy [2010] 2 FLR 782). In any event, for the reasons I set out below, I am satisfied that the conclusions of the expert with respect to the question of the father's 'rights of custody' under the Convention are incorrect.

THE LAW

Rights of Custody

Art 3 of the 1980 Hague Convention provides as follows with respect to the wrongful removal or retention of children:

"Article 3

The removal or the retention of a child is to be considered wrongful where-

(a) it is in breach of rights of custody attributed to a person, an institution or any other body either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State."

Further in relation to the meaning of 'rights of custody' Art 5 of the 1980 Hague Convention provides as follows:

Article 5

For the purposes of this convention-

(a) 'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;

(b) 'rights of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.

Within this context, the meaning of the term 'rights of custody' is established by the autonomous law of the 1980 Hague Convention (as distinct from any particular domestic legal system). Whether 'rights of custody' as defined by the 1980 Convention exist in a given case is to be determined by reference to the position created by the law of the state in which the child was habitually resident immediately before the removal or retention. Thus, the court's approach to determining the question of the existence or otherwise of 'rights of custody' is a two stage process (Hunter v Murrow [2005] 2 FLR 1119 and Kennedy v Kennedy [2010] 1 FLR 728), namely:

i) What is the position created by the law of the state in which the child was habitually resident immediately before the removal or retention?

ii) Does the position created by the law of the state in which the child was habitually residence immediately before the removal or retention equate to 'rights of custody' for the person in question having regard to the meaning of the term 'rights of custody' as established by the autonomous law of the 1980 Hague Convention?

With respect to establishing the meaning of the term 'rights of custody by reference to the autonomous law of the 1980 Hague Convention, in Re C (A Minor)(Abduction) [1989] 1 FLR 403 at 412 Lord Donaldson MR described the approach of the court as follows:

"I wish to emphasise the international character of this legislation. The whole purpose of such a code is to produce a situation in which the courts of all contracting states may be expected to interpret and apply it in similar ways, save insofar as the national legislatures have decreed otherwise. Subject then to exceptions…the definitions contained in the Convention should be applied and the words of the Convention, including the definitions, construed in the ordinary meaning of the words used and in disregard of any special meaning which might attach to them in the context of legislation not having this international character."

Within this context, I note again that the definition of 'rights of custody' provided by Art 5(a) of the Convention provides that rights of custody "shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence".

As to whether the position created by the law of the state in which the child was habitually resident immediately before the removal or retention equates to 'rights of custody' having regard to the meaning of the term 'rights of custody' as established by the autonomous law of the 1980 Hague Convention, in Re D (A Child) [2007] 1 AC 619 at [26] Baroness Hale observed that:

"The question is, do the rights possessed under the law of the home country by the parent who does not have the day to day care of the child amount to rights of custody or do they not?"

Within this context, this case raises the issue of the extent to which a parent's right under the law of the state in which the child was habitually resident immediately before the removal or retention to veto the removal of that child from the jurisdiction without the permission of the court (a ne exeat right) constitutes 'rights of custody' within the meaning of the 1980 Convention. The House of Lords held in Re D (A Child) that the right of veto does amount to 'rights of custody'. This is also the position taken by the US Supreme Court (see Abbott v Abbott 130 S Ct 1983 (2010)). In Re D Baroness Hale stated at [37] and [38]:

"[37] Therefore, in common with the understanding of the English and Scottish courts hitherto, and with what appears to be the majority of the common law world, I would hold that a right of veto does amount to "rights of custody" within the meaning of article 5(a). I see no good reason to distinguish the court's right of veto, which was recognised as "rights of custody" by this House in In re H (A Minor) (Abduction: Rights of Custody) [2000] 2 AC 291, from a parental right of veto, whether the latter arises by court order, agreement or operation of law.

[38] I would not, however, go so far as to say that a parent's potential right of veto could amount to "rights of custody". In other words, if all that the other parent has is the right to go to court and ask for an order about some aspect of the child's upbringing, including relocation abroad, this should not amount to "rights of custody". To hold otherwise would be to remove the distinction between "rights of custody" and "rights of access" altogether. It would be also inconsistent with the decision of this House in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562. There an unmarried father had no parental rights or responsibility unless and until a court gave him some; but he did, of course, have the right to go to court to seek such an order. This was held not to amount to "rights of custody" within the meaning of article 5(a) . Nor could a subsequent order grant him such rights if by then the child's habitual residence had been changed."

In Re D it can been seen that the House of Lords drew a distinction between a right to veto the removal of the child from the home jurisdiction, which will amount to 'rights of custody' within the autonomous meaning of Art 5(a) of the 1980 Convention and a "potential right of veto" (for example, the right to go to court and seek an order), which is insufficient to establish 'rights of custody'.

As to 'rights of custody' arising "by reason of a judicial or administrative decision", I note that in Re F (Rights of Custody) [2008] 2 FLR 1239 the then President, Sir Mark Potter, held that a Polish court order restricting the father's parental authority in respect of the children only to permitting him to "co-decide on their vital problems in connection with upbringing, education and medical treatment" was sufficient to establish 'rights of custody' on the part of the father.

Art 13(b)

The law in respect of the defence of harm or intolerability under Art 13(b) was examined and clarified by the Supreme Court in Re E (Children)(Abduction: Custody Appeal) [2011] 2 FLR 758. The applicable principles may be summarised as follows:

i) There is no need for Art 13(b) to be narrowly construed. By its very terms it is of restricted application. The words of Art 13 are quite plain and need no further elaboration or gloss.

ii) The burden lies on the person (or institution or other body) opposing return. It is for them to produce evidence to substantiate one of the exceptions. The standard of proof is the ordinary balance of probabilities but in evaluating the evidence the court will be mindful of the limitations involved in the summary nature of the Convention process.

iii) The risk to the child must be 'grave'. It is not enough for the risk to be 'real'. It must have reached such a level of seriousness that it can be characterised as 'grave'. Although 'grave' characterises the risk rather than the harm, there is in ordinary language a link between the two.

iv) The words 'physical or psychological harm' are not qualified but do gain colour from the alternative 'or otherwise' placed 'in an intolerable situation'. 'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'.

v) Art 13(b) looks to the future: the situation as it would be if the child were returned forthwith to his or her home country. The situation which the child will face on return depends crucially on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation when he or she gets home (where, as in this case, Art 11(4) of BIIa applies, the court cannot refuse to return a child on the basis of Art 13(b) of the Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return). Where the risk is serious enough the court will be concerned not only with the child's immediate future because the need for protection may persist.

vi) Where the defence under Art 13(b) is said to be based on the anxieties of a respondent mother about a return with the child which are not based upon objective risk to her but are nevertheless of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to a point where the child's situation would become intolerable the court will look very critically at such an assertion and will, among other things, ask if it can be dispelled. However, in principle, such anxieties can found the defence under Art 13(b).

As to specific circumstances which may result in the defence under Art 13(b) being made out, if it is demonstrated that an order for return would result in the child being left destitute and homeless then the court is likely to find that the defence under Art 13(b) has been made out (Re M (Abduction: Undertakings) [1995] 1 FLR 1021).

Where proceedings have been issued within a year, and accordingly the defence of 'settlement' under Art 12 does not arise for consideration, it has been held that settlement arising from delay can, in appropriate circumstances, nonetheless constitute the basis for an argument that the child would be exposed to an intolerable situation for the purposes of Art 13(b) if summarily returned to the country of his or her habitual residence within the context of 'intolerable' meaning "a situation which this particular child in these particular circumstances should not be expected to tolerate" (see Re D (A Child)(Abduction and Custody Rights) [2007 1 AC 619 at [52]). In Re D (A Child)(Abduction and Custody Rights) at [53] the Supreme Court held as follows in the context of a delay of over three years between removal and return:

"In this context, a delay of this magnitude in securing the return of the child must be one of the factors in deciding whether his summary return, without any investigation of the facts, will place him in a situation which he should not be expected to have to tolerate."

Having regard to this passage, in KS v RS [2009] 2 FLR 1231 at [45] Macur J (as she then was) noted as follows:

"That undue delay and settlement may, in appropriate cases, constitute the basis of an argument that a child would be exposed to an intolerable situation if summarily returned to their country of habitual residence prior to removal is recognised by Baroness Hale of Richmond in Re D (A Child)(Abduction: Custody Rights) [2006] UKHL 51, [2007] 1 AC 619, [2006] 1 WLR 989, [2007] 1 FLR 961 at paras [51]-[53]. In particular I note that the word 'intolerable' in this context should be taken to mean 'a situation in which this particular child in these particular circumstances should not be expected to tolerate'."

However, as recognised by Macur J in Ks v RS [2009] 2 FLR 1231 at [45], such an approach is fact specific and is subject to the well-established principle that the court should require clear and compelling evidence of grave risk of harm or other intolerability, which must be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence. Within this context, in TB v JB [2001] 2 FLR 515 Hale LJ (as she then was) said:

"The policy of the Convention is that disputes about children should be determined in the courts of the country of their habitual residence. Children should not be uprooted and placed beyond their jurisdiction. It is for them to determine where the best interests of the children lie. Article 13(b) is the one exception to this. No requested country can be expected to return a child to a situation where they will be at serious risk, but this must not be turned into a substitute for the welfare test, usurping the function of the courts of the home country."

There are no authorities on the question of whether returning a child to the country of his or her habitual residence at the request of a parent who is no longer in that country is capable of satisfying the requirements of Art 13(b). As with all cases in which Art 13(b) is invoked, the answer will depend on the facts of the case and the extent to which it can be said that to return the child in these circumstances would expose the child to an intolerable situation in the sense of placing the child in "a situation which this particular child in these particular circumstances should not be expected to tolerate".

For example, where there has been delay in seeking the return of the child it is arguable that the absence from the jurisdiction of habitual residence of the parent seeking the return of that child to that jurisdiction, and the consequent inability upon the child's return to continue and promote the relationship between the child and the left behind parent in that jurisdiction, may increase or exacerbate the intolerability of uprooting the child for the purposes of return after a long period of settlement and/or the disruption, uncertainty and anxiety which follows an unlooked for return to the jurisdiction of the court of habitual residence. Against this, it might be argued that, where the left behind parent is still entitled, and able, to seek a welfare determination in the country of the child's habitual residence notwithstanding his or her absence from that jurisdiction, the underlying principle on which the Convention rests (that any debate on the merits should take place before the competent authorities in the State where the child had his habitual residence prior to his removal) will remain highly relevant.

Finally in respect of Art 13(b), this is a case to which the provisions of BIIA Art 11(4) apply. In the circumstances the court cannot refuse to return the child on the basis of Art 13(b) of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his return.

Staying or Suspending Return Orders

Art 12 of the 1980 Hague Convention provides, inter alia, as follows with respect to the return of an abducted child:

"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith."

It would appear that the court, having determined to make an order for summary return in circumstances where none of the defences to the same are made out, has the power to stay or suspend the operation of that order pending steps being taken in the court of the child's habitual residence, which steps may result in the child not returning to the jurisdiction of habitual residence. It would also appear that this power is one to be exercised only in exceptional circumstances.

In JPC v SLW and SMW (Abduction) [2007] 2 FLR 900 the then President, Sir Mark Potter concluded that the defences of consent or acquiescence, child's objections and harm were not made out and made an order for summary return of the child to the mother in Ireland. However, in circumstances where the court also concluded that, having regard to the quality of the mother's parenting, the child's welfare would not be properly protected in the short period prior to the hearing in the Irish court, the President stayed the return order pending the first directions hearing in Ireland (the Irish judge already being acquainted with the case and having agreed to list the matter for an expeditious directions hearing with a view to holding a welfare hearing) at which directions hearing the Irish court would consider the appropriateness of any further postponement of the child's return to Ireland.

In F v M and N (Abduction: Acquiescence: Settlement) [2008] 2 FLR 1270 Black J (as she then was) found the defence of settlement to be made out in respect of a child who had been living in England almost 2 years. In circumstances where the Polish court had been seised of the child's case before the mother abducted the child from Poland, being satisfied that the Polish court was much better placed to determine many aspects of the case than the English court and having regard to the major disruption for the child of making an order for return, Black J concluded that the child would be best served by the Polish court concluding their decision making process as to the child's welfare as soon as possible. In these circumstances, Black J exercised her discretion in favour of making an order for summary return but suspended that order to allow time for the mother to issue an application in Poland for variation of the Polish interim custody order the in force in favour of the father and permission to bring the child to the jurisdiction of England and Wales.

Finally, in R v K (Abduction: Return Order) [2010] 1 FLR 1456 Ryder J (as he then was) considered the power of the court to stay or suspend a return order pending a decision by the foreign court on the abducting parent's application for interim permission to remove the child to the jurisdiction of England and Wales. Ryder J concluded "there is a jurisdiction to implement a forthwith return order such that specified practical steps can be identified and provided for". Further, Ryder J did not rule out the power of the court to "to consider an exceptional course of delaying the execution of its order to abide the event of the decision of the Polish court" but made clear that, in the context of the risk of opening the floodgates to applications for delayed return orders in almost every primary carer case, such a course would indeed be an exceptional one.

As to the time scales for implementing an order for return forthwith in a manner which provides for the identification and implementation of identified practical steps over a limited period of time prior to the return, in Re M (Abduction: Undertakings) [1995] 1 FLR 1021 Butler-Sloss LJ (as she then was) observed as follows in relation to the timescales that might be contemplated:

"It is perhaps helpful to remind those engaged in Hague Convention applications about the position of undertakings or conditions attached to an Art 12 order to return. Such requirements are to make the return of the children easier and to provide for their necessities, such as a roof over the head, adequate maintenance, etc, until, and only until, the court of habitual residence can become seized of the proceedings brought in that jurisdiction. In Re C (A Minor) (Abduction) [1989] 1 FLR 403, Lord Donaldson MR said at p 413: 'Save in an exceptional case, our concern, i.e. the concern of these courts, should be limited to giving the child the maximum possible protection until the courts of the other country, Australia in this case, can resume their normal role in relation to the child.' This court must be careful not in any way to usurp or to be thought to usurp the functions of the court of habitual residence. Equally, the requirements made in this country must not be so elaborate that their implementation might become bogged down in protracted hearings and investigations, as was suggested by Sir Thomas Bingham MR in Re M (A Minor) (Child Abduction) (above) at p 397. Undertakings have their place in the arrangements designed to smooth the return of and to protect the child for the limited period before the foreign court takes over, but they must not be used by parties to try to clog or fetter, or, in particular, to delay the enforcement of a paramount decision to return the child. It would be helpful if realistic time-limits for the compliance with the undertakings were included in the orders to return the child, but in the absence of a specified time, clearly the court would consider a reasonable time and not allow the case to drag on with repeated applications to the court."

Art 8 of the ECHR requires that State authorities have to make adequate and effective efforts to enforce the return of the child upon an order being made (Gil and Aui v Spain (Application No 56673/00) [2005] 1 FLR 190). A failure by national authorities to take the measures set out in the Hague Convention to secure the return of the child under those provisions (including the provision for return forthwith under Art 12(1)) can amount to a breach of the Art 8 right to respect for family life of the non-abducting parent (see Ignaccolo Zenide v Romania (2001) 31 EHRR 7 at [95] and Gil and Aui v Spain (Application No 56673/00) [2005] 1 FLR 190 at [59]-[63]).

Finally, in cases where a parent who has removed children from their jurisdiction of habitual residence and is facing the summary return of children to that jurisdiction forthwith, I consider that it is always important to recall the observations of Mostyn J in B v B [2014] EWHC 1804 that the objective of the Convention is to ensure that a child who has been removed unilaterally from the country of his or her habitual residence, in breach of rights of custody, is returned forthwith in order that the courts in that country can decide his or her long term future and that a decision by the English court to return a child under the terms of a Convention is no more and no less a decision to return the child for a specific purpose for a limited period of time pending the court of his or her habitual residence deciding the long term position.

THE SUBMISSIONS

Rights of Custody

The mother submits that the father does not have rights of custody in respect of RK and relies on the final conclusion of the jointly instructed expert in this regard.

The father submits that he does have rights of custody in respect of RK in circumstances (a) where he has a right of veto the removal of RK from the jurisdiction of Poland (as distinct from simply a right to go to court to obtain such a veto in the form of an order), which right of veto amounts to 'rights of custody' within the autonomous meaning of Art 5(a) of the 1980 Convention and (b) in circumstances where the verdict of 7 February 2012 provides that he has the right to co-decide matters relating to medical treatment for RK amounts to "rights relating to the care of the person of the child" for the purposes of Art 5(a) of the Convention and, accordingly, to 'rights of custody.

Within this context, the Father submits that the evidence before the court demonstrates that the mother had a pre-prepared plan to abduct RK to the United Kingdom in the face of ongoing welfare proceedings in Poland, having misled the Polish court on 27 April 2016 as to the reasons for requesting travel documents for RK in the face of the father's objection in circumstances where she knew she had already secured employment in England.

Art 13(b)

If the court is not with the mother in respect of her submissions concerning rights of custody she in any event contends that the defence of harm under Art 13(b) of the Convention is made out in this case.

The mother contends that, notwithstanding that the father has now been deported to Armenia, if she and RK were forced to return to Poland they would not be safe "because of all the proceedings I initiated" to the extent that Art 13(b) is made out. Whilst accepting that the father is no longer in the jurisdiction of Poland, Mr Barda submits the mother is at risk from associates of the father having co-operated with the Border Police and that, being absent from Poland, the father cannot properly give undertakings to protect against this risk.

Through Mr Barda, the mother contends that were an order for RK's return to Poland to be made she and RK "would have nothing in Poland" in circumstances where her flat was rented, she has no work, no savings and would have no financial aid. The mother contends that there would be no school for RK in Poland. The mother contends she would not be able to stay with family in Poland. Whilst the mother is certain that the Polish court would give her permission to remove RK from the jurisdiction of Poland to the jurisdiction of England and Wales she is fearful that she would lose her flat, business and customers in England in the intervening period were she to have to return to Poland, leaving her and RK impoverished in both jurisdictions. The mother contends that this situation would expose RK to an intolerable situation of a severity that satisfies Art 13(b). The mother submits in particular that a step with these consequences should not be taken where the father is no longer in the jurisdiction of Poland.

The father further submits that the mother cannot make out the defence of harm pursuant to Art 13(b) in this case. With respect to the mother's allegations concerning his own conduct, the father points to the fact that, by virtue of his deportation, he will not be present in Poland should RK and the mother return, that he offers undertakings as to his conduct (set out below) and that the mother has the protection of the 2005 Polish Law on Domestic Violence, which provides injunctive relief and the Polish Criminal Code, which establishes criminal liability for assault. The father further points to the fact that Poland has ratified the Council of Europe Convention on Prevention of Domestic Violence. The father also offers the following undertakings:

i) Not to remove RK from the care of the mother save for the purposes of contact pending an inter partes hearing in Poland;

ii) Not to institute or support voluntarily civil or criminal proceedings against the mother for unlawful removal of RK from the jurisdiction of Poland;

iii) Not to harass, pester, molest or use or threaten violence against the mother or encourage any other person to do so.

The father disputes that RK would be left impoverished, let alone destitute, if he was returned to Poland. He points to the fact that the mother reported to the psychologist in April 2015 that she was working in a private cosmetics company earning PLN 1700 under a contract of employment (I note that mother gives a different figure of PLN 1300 in her statement to this court) and has identified similar jobs that would be available to the mother. In the interim Ms Renton, on behalf of the father, points to the fact that the mother accepts she could access benefits in Poland. The father has further has identified a flat that the mother could rent if not able to live temporarily with her own mother.

In relation to the question of delay and settlement (using that word in its non-technical sense) the father relies on the fact that he issued his proceedings before the expiration of the 12-month period articulated by Art 12. The father points to the fact that the question of whether disrupting RK's status quo by ordering his return amounts to a grave risk that he would be exposed to physical or psychological harm of otherwise placed in an intolerable situation must be considered in the context of the fact that RK has been the subject of social services intervention in this jurisdiction arising out of his home conditions.

With respect to the disruption caused by returning RK to a country in which he is no longer present, the father submits that notwithstanding his deportation from Poland he remains able to participate, albeit from a distance, in proceedings concerning RK in that jurisdiction, noting that the mother continues to prosecute those proceedings. The father submits that, in such circumstances and where RK's welfare is capable of being safeguarded in Poland pending the determination of proceedings in that jurisdiction, the underlying principle on which the Convention rests (that any debate on the merits should take place before the competent authorities in the State where the child had his habitual residence prior to his removal) should prevail over any temporary disruption and upset caused by removing RK from his current situation in England (which current situation the father in any event contends is far from settled given the matters that have necessitated the involvement of English social services).

Return Order

Finally, in the event the court orders return, the mother requests that the court suspend the operation of that order pending an application by her in the Polish court for interim permission to remove RK from the jurisdiction of Poland to the jurisdiction of England and Wales. Within this context, with the parties' agreement and with the assistance of the Office of the Head of International Family Justice, the court posed the following question to District Judge at the Polish District Court via the Polish Liaison Judge:

"If the mother were to make an application to the Polish court on notice to the father for an order granting her interim permission to remove RK from the jurisdiction of Poland to the jurisdiction of England and Wales what is the likely timescale for the determination of that application?"