England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		17th March 2017

MR. JUSTICE FRANCIS:

1. The court is concerned with SL, a boy born on 12^th September 2010 and he is, therefore, some six-and-a-half months old. The applicant is his father and on 15^th December 2016 he made an application under the Child Abduction and Custody Act 1985 and Art.11 of Council Regulation EC 2001/2003 for the return of SL to Poland. The respondent is his mother.
2. The matter came before Cobb J on 16^th December 2016. He made a Passport Order against the mother and in respect of SL's passport. He also made directions listing this case for summary disposal or, alternatively, for further directions on 12^th January of this year.
3. On that date, the matter came before His Honour Judge Richards, sitting as a deputy High Court judge, who adjourned the matter until 16^th March listing it for a hearing for one-and-a-half days. This is my judgment having conducted that hearing.
4. It is not in issue that the mother removed SL from Poland to England in July 2016 without the consent of the father and that in so doing she acted in breach of the father's rights of custody. I am mandated by my duties pursuant to the Child Abduction and Custody Act and the relevant Council Regulation to order the return of SL to Poland unless one of the recognised defences is made out.
5. In her undated defence statement which was served on the father's solicitors only on Monday of this week the mother seeks to make out her Art.13(b) defence. The relevant part of Art.13 provides:

"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

a)   …
b)   there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation…"

6. This is the only basis on which the mother defends the application for summary return. She contends that:

(a) The father has been violent towards her throughout their relationship both mentally and psychologically and on many occasions has been so physically in front of the child causing the child great distress and psychological trauma.

(b) The father has also been aggressive towards the child and the mother wanted to stop the aggression by taking the child away to protect him from severe violence and continuous threats to beat him.

(c) The mother had informed the applicant that she had fled to England in order to protect the child and herself from being physically tortured and that she could not return to Poland as the father would attack them again.

(d) The father had changed completely after serving for the Polish army in Afghanistan and is now aggressive on a daily basis and abuses both the mother and SL physically and emotionally.

(e) The father had smashed the mother's face and bruised her eyes on many occasions.

(f) The father had shown photographs of decapitated and limbless torsos in Afghanistan to both the mother and SL.

(g) The mother fears that should the court in England decide that SL should return to Poland he will be physically beaten by the father who is psychologically incapable of providing care and causes great danger to the child.

7. I remind myself that the burden of proof of setting out her defence under Art.13(b) is on the mother and that the standard of proof is the balance of probabilities.
8. The short background is that the mother and father were married on 7^th August 2010 and they remain married although separated. It is common ground that the mother came to England to work in September 2015 leaving SL in the care of his father in Poland. By this time, the father had ceased his tours abroad and was working as a soldier at a local military base. I make the observation here that it is clear that in September 2015 the mother took the view that SL would be safe in his father's care.
9. The mother, it seems, visited SL in Poland in February, April and July 2016. She accepts that it was in July 2016 when she lied to the father saying to him that she was taking SL out shopping when, in fact, she was taking him to England. The father has exhibited to his statement a number of text messages. Some of the texts exchanged on 1^st July read:

THE FATHER: "Where are you both and what do you want? Where are you both??????? You were supposed to be here in the afternoon."

THE MOTHER: "But I won't."

THE FATHER: "When?"

THE MOTHER: "I'm in England."

THE FATHER: "What?"

THE MOTHER: "I am."

THE FATHER: "When was I going to come? Answer the phone. Where are you both?"

THE MOTHER: "I already said."

10. This is how the father came to learn that the mother had taken their son to England. As I have said, the mother accepts that the father had rights of custody in Poland and she accepts that she has breached those rights of custody.
11. The father is a soldier serving with the Polish army. He has served both in Bosnia and in Afghanistan and agrees that he had received some psychotherapy and/or counselling thereafter. He vehemently denies the allegations made by the mother that he uses army style discipline against both the mother and SL. He denies as complete fiction the suggestion that he has shown either the mother or SL photographs of the kind referred to above.
12. There have been a number of applications made in the courts in Poland. Many of the relevant Polish papers have been exhibited to the father's statement in support of his application for SL's return. It is clear that on 19^th September 2016 a judge of the regional court in Poland, found and ordered that the place of residence of the minor child, SL, shall be with the father.
13. The mother sought to appeal that decision. Before I turn to the appeal itself, it is important that I set out the nature of the mother's case before the regional court at first instance. Absent from the documents which were before me when this case started was the decision of the regional court and the reasons given by the judge. It seemed to me that it would be helpful to have these reasons since they may have included reference to the matters which now form the basis of the mother's defence. If they did it seemed to me that they would have been possibly ruled upon; and if they did not it seemed to me that that was significant evidence of omission.
14. During the course of the first morning of this hearing the father was able to secure from his Polish lawyers a scanned copy of the judgment of the regional court in Poland sent by email. The interpreter who has been in court on behalf of the mother accepted my invitation to read the entire judgment of the Polish regional court (apart from the last page which was then missing which, now having been found, everyone agrees is not relevant). Nowhere, during the course of that judgment, was any reference made at all to the matters which now form part of the mother's defence. I regard this as extremely important.
15. The mother told me and I accept that she was at all times represented in Poland by family lawyers both at the first instance regional court and in the appeal court. She says to me that she told them about the matters which form her defence to these proceedings including the allegations, which I regard as extremely serious, of abuse and even torture not only against herself but, even worse, against their son.
16. Given that the polish court set out carefully considered reasons, it was obvious to me when reading it that it had heard carefully presented arguments on both sides. It is a thorough judgment. I am afraid that I regard it as extremely unlikely that the mother could have told her Polish lawyers, for example, that both she and her son had been subjected to torture at the hands of the father and that the Polish lawyers would then have regarded this material as so irrelevant that it did not feature in the case at all.
17. I have the decision of the Court of Appeal in Poland dated 28^th November 2016. Again, it is a thorough and reasoned judgment. It contains a number of extremely material statements of fact and of findings, and I merely set out some of them as examples. The first example is as follows:

"It has to be noted that since August 2015, i.e. from the day the participant [the mother] in the proceedings went abroad, it was SK who has direct custody of six-year-old SL. He looked after him and was committed to providing the best current conditions to live and develop. The minor at the time was regularly attending nursery and spent his free time with his father."

"It has to be noted that the applicant father, SK, is a professional soldier. He has stable employment which allows him to personally take and collect his son from school and look after him in the afternoons. His life is stable. On occasions when he had to participate in training his mother will cover additional duty or his friends would look after the child. The guardian confirmed in his assessment that the applicant's living arrangements were very good [the father]. The minor loved being at home with his dad where, until he was taken to England, was the centre of his life. The quality of care provided by the applicant to his son during the absence of his mother has never been questioned by the guardian or by nursery staff."

18. Again, further down in the Polish Court of Appeal judgment it says:

"The court of first instance correctly noted that this was an important circumstance for the minor's sense of safety and stabilisation as the minor was, without any warning, removed from familiar to him surroundings to a foreign country where the residents speak the language he does not understand.

Taking the circumstances under consideration, the court of second instance decided that for the duration of the proceedings SK [the father] offers a better guarantee of correct custody over the minor."

19. Again, further down the judgment it says:

"Although the participant [the mother] in the proceedings has a stable job and from September lives in independent accommodation in England, this court believes that it is not enough to establish that it is in the minor's best interests to live with his mother abroad. It has to be noted that the minor, SL, is only six years old. In July 2016 he was removed to a foreign country, foreign culture, and made to live among foreigners with whom, due to language barrier, he cannot communicate well enough. The minor was suddenly removed from the community he knew all his life. The participant in the proceedings did not take under [into] account the minor's feelings, his attachment to places and people with whom he was growing up. All the plans concerning his education, instead of starting attending school which is located near his father's place of residence with his nursery friends, he was removed to a place where he could only count on his mother."

"This court believes that at this stage of the proceedings it is the minor's best interests to require him to come back to his well-known environment where he felt safe, be well-looked after and all his needs were met. The move from England to Poland should not negatively affect the minor as he thinks at the moment that he is on extended holidays at his mother's place"

[I remind myself that this judgment was given last November and so life has moved on some three or four months].

"It has to be noted that the evidence gathered in this case regarding the maturity of the participant [the mother] in the proceedings and her willingness to care for the child is causing concerns. She was acting irrationally when she removed her son from Poland without taking any action to regulate the legal situation regarding his place of residence. Earlier she did not find any time the six months before to come to Poland to see her son despite a declaration of the attachment of the child and the fact that nowadays travelling by plane between the UK and Poland lasts two to three hours and its cost, when booked early enough, is not too high."

20. Accordingly, and somewhat unusually in one of these cases, I have the benefit of two detailed, reasoned and considered judgments from the foreign court: The first being a court of first instance and the second being a Court of Appeal. Those courts, as I have indicated, were assisted by a number of other documents. These included a statement from SL's tutor indicating that his relationship with his father was very good and that the boy was well-cared for by his father. I have the report of what I think in Poland was referred to as "the guardian" but the equivalent, I understand, of what we would call a welfare officer which makes nothing but good findings in relation to the care which the father was providing for his son. In particular I note this paragraph of that report:

"At the time when the father exercised the care, no irregularities occurred in terms of the exercise of parental authority. The applicant claims the child's mother supposedly accused him of excessive rigour and lack of supervision over the child's hygiene which is contrary to the findings made during an interview with the boy's tutor at nursery."

21. Having read the mother's defence statement and considered the detailed nature of the enquiries that were made by two different levels of court in Poland, and having heard the mother's submissions to me in court yesterday and today, I have no hesitation at all in finding that the mother's Art.l3(b) defence is not made out.
22. Although the mother was plainly nervous when in court, she was, through her interpreter and with the assistance of her McKenzie friend who is fluent in Polish and English, able to communicate to me the concerns that she has. It is, in my judgment, extremely unlikely that her Polish lawyers would have completely ignored all of the protestations about the father's care made by her, she says, to them in Poland. Moreover, I have the benefit of the report of the Polish guardian and the tutor in Poland, to which I have just referred, and which weighed heavily on the decision in the Polish courts.
23. I repeat that the burden of proof in this case is on the mother with the standard of proof being the balance of probabilities. I have no hesitation at all in finding that on the balance of probabilities the mother did not communicate to her Polish lawyers any of the serious matters that appear in her defence statement and which might, in different circumstances, have founded at least the beginnings of an Art.13(b) defence.
24. I should also set out here another rather important piece of evidence. When the father visited England in September 2016 not only did the mother allow him to take SL out all day on two consecutive days, she also allowed him to take out the daughter of a friend of hers at the same time. In my judgment, those actions on her behalf are completely inconsistent with a mother in fear of the fact that the father of her son is likely to abuse him, torture him and treat him in a thoroughly appalling and inappropriate way.
25. I should add here that, during the course of her submissions, the mother invited me to consider her Art.8 rights, in other words, the right to respect for private and family life. Given my findings that she breached the father's rights of custody when she abducted SL to England, I cannot possibly subordinate the rights of the father and the child to the mother's Art.8 rights.

The mother further urged upon me her Art.6 rights, namely her right to a fair trial. While she had been unrepresented at this hearing, she has been ably assisted by her McKenzie friend and she has had the services of an obviously extremely competent interpreter. I am in no doubt that she has understood the process and participated in it. She has had months to put forward a statement and any other documents that she wanted to put before this court. Of course, any summary process such as that provided for in all Hague countries, such as this summary process, is going to be harrowing. It is going to be difficult for all of the participants but I am satisfied that, having regard to my duties under the Convention and the Council Regulation, the mother's right to a fair trial has been properly respected.

26. I am not in any doubt that the real reasons for the mother's wish to stay here were properly set out by her at the end of her submissions, and I have respect for them when she said, and she made it clear, that she enjoyed life in England. SL is beginning to learn English and is settling down well at school. She has work here. She has a new life here. She has not put settlement forward as a defence but even if she were to do so, plainly, it could not succeed in this case since it would permit her to take advantage of her own abduction last July by pleading matters that have occurred since then.
27. Moreover, even were I to have found that the beginning of a Art.13(b) defence had been made out, it is highly likely that I would have found that sufficient safeguards could be put in place in Poland to protect the mother and her son. I have already referred to the fact that there have been carefully considered proceedings in Poland with both sides represented. The father has volunteered in this jurisdiction all of what I might refer to as the "soft-landing" undertakings. He has offered:

1) To pay the cost of the return flight to Poland for his son.

2) Not to instigate or support any criminal prosecution of the mother for the offence of child abduction.

3) Not to use or threaten violence against the mother or instruct anyone else to do so.

4) Not to use or threaten violence against his son or instruct or encourage anyone else to do so.

5) Not to separate or cause the separation of SL from the care and control of his mother save for the purposes of contact or as ordered by the competent court in Poland.

6) Not to be present at the airport when the mother and child arrive in Poland.

7) To vacate the former family home and not return thereto until further agreement or order so as to allow the mother and SL to live there.

28. I make it clear, for the record, (although it will be obvious to the lawyers in court) that those undertakings are all given by the father without prejudice to his primary contention that he is not guilty of the matters of which the mother has suggested he is guilty.
29. There is a listed final hearing (in Poland) of the father's application for a Residence Order (or an "Order for Custody") listed for Monday 20^th March, in other words, in three days' time. At my invitation the father has agreed, if this is possible, to seek an adjournment of that hearing or treat it as a directions hearing only unless, of course, the mother and her Polish advisers agree that it should be treated as a final hearing.
30. I accept that the father cannot have any control over the process in Poland, he can only invite the court to take a particular course. Plainly, it is too late now to adjourn that hearing and there will need to be an attendance on Monday. The reason I explored the possibility of an adjournment is because I do understand that it may be difficult for the mother to be ready for this hearing on Monday. Against that I know, because I have been told, that the mother has provided instructions to her Polish lawyers in respect of that hearing.
31. The mother told me that she intends to be at that hearing on Monday. Enquiries have revealed that flights are currently available from Stansted to Gdansk in Poland on both Saturday and Sunday of this weekend, i.e. tomorrow and the day after tomorrow, at 18:45 hours. If the mother is to return to Poland, as I have said, for the purposes of the hearing on Monday, then it is obviously sensible for her to take SL back to Poland with her on a flight either on Saturday or Sunday of this weekend.
32. I asked the mother which of those she would prefer in the event that I were to make the decision that SL should return to Poland and she indicated that she would choose the flight tomorrow, Saturday.
33. In circumstances where, as I have said, I am mandated by the Council Regulation, the legislation of the Convention, to return SL to Poland unless the Art.13(b) defence is made out, I do now order his return to Poland. Unless the mother indicates to me otherwise, or unless it transpires that flights are no longer available, I order that SL be returned to Poland by the mother on the flight at 18:45 from Stansted to Gdansk tomorrow and the order can provide for the flight number and all of the relevant details: that is at 1845 hours, Saturday 18^th March 2017.
34. The father will pay the costs of the flight of his son and the mother will pay for her own flight. The father has offered (and I wish this to be recorded, please, as an undertaking) to pay for the cost of a taxi from Gdansk airport to either the former family home or the address of a friend where the mother says she may instead choose to live for the time being. That choice is one for the mother to make.
35. I accept the undertakings offered by the father as briefly referred in this judgment but which are more comprehensively set out in the annexed schedule of undertakings provided by the father's counsel, Ms. Lucey, and I shall deal with the undertakings, and the father's understanding of those undertakings, in a moment. I shall require the father to sign the usual form of undertaking.