High Court of Justice in Northern Ireland Family Division Decisions

(a) "the children", both boys now 8 and 6 years old respectively, who are the subject of an order of a Polish court, as Jakub and Dawid;

(b) the mother and appellant as Zofia;

(c) the father and respondent as Dominik;

(d) the mother's present partner as Gavin;

(e) the mother's child with Gavin, who is now 1 year old, as Hugh.

Dominik, Zofia, Jakub and Dawid are all Polish nationals. Gavin is British.

Factual Background

"The order to release the children issued on the basis of the Convention is designed only to restore the situation before the abduction, before the breach of rights of custody, as discussed in Article 3. The Convention does not provide a basis for a substantive statement concerning the regulation of child care. This means that once the children are returned to Ireland, the parties will be able to obtain a decision in Poland regarding regulation of child care. In actual fact divorce proceedings between the parties are currently in progress at the District Court in Katowice".

It also stated:

"As already mentioned in this case the court is not examining who should exercise parental authority. This will be decided during divorce proceedings, in which case psychological evidence may be seen as essential".

I set out this part of the judgment not on the basis that it is legally correct, about which I have not heard any argument, but to illustrate that Zofia had commenced separation proceedings in Poland and it was envisaged by Zofia, Dominik and the court in Poland that the Polish court would hear and determine who should exercise parental responsibility in respect of Jakub and Dawid.

"1. Rules separation of marriage between … (Zofia and Dominik) … due to the fault of (Zofia).

2. Exercising of parental power over the juveniles … is assigned to the father Dominik, limiting the parental authority of the mother, Zofia, to personal contacts and the right to mutually agree on essential issues related to the children concerning choice of school, profession, means of treatment in case of illness.

3. The duty of bearing the costs of keeping the minors … is imposed on Dominik … by means of services in kind and on (Zofia) by paying (1,100 zlotys) a month payable to the children's father Dominik.

4. Does not rule on place of residence of both parties.

5. Imposes court fees on Zofia …

6. Awards (assessed costs) from Zofia to Dominik …"

"By means of protection during the trial to give parental care to (Dominik) … over the minor children … and established their temporary place of residence each time in (Dominik's) place of residence".

"Based on the material available, the District Court established that the children have emotional bonds with both parents. However, taking into account both son's attitudes and the parents respective attitudes to parental care, the court of first instance ruled that, as a parent, (Dominik) would provide a better guarantee for the emotional and social development of the children in their previous environment. The District Court expressed the opinion that (Zofia) appellant, in starting a relationship with another man at the same time as encouraging the whole family to come to Ireland and seeing the financial and linguistic problems caused as well as problems of adaptation, revealed a high level of selfishness, lack of imagination and commonsense regarding the children's wellbeing. The appellant should have realised the possible negative consequences of her actions and the children all the more, being a … by profession. As a result, the District Court ruled that the father had the more correct attitude to parenting while (Zofia) put her feelings first, and those of the children second. In the view of the court of first instance, (Dominik) should exercise parental authority over the children during the proceedings, as he will guarantee the children a feeling of emotional and financial security and acceptance, and he will reduce any feelings of rejection and unhappiness with the situation they are currently in, living with a man whom they blame for the break-up of their family unit. The decision of the court concurs with the expectations of the oldest son, as expressed during a phone conversation with his father. However, the youngest son, although he does not express himself as clearly as his older brother, also requires his father's support on a daily basis and his help in reducing any negative behaviour resulting from the break-up of the family unit. The District Court based its ruling on Article 755(1) of the Code of Civil Procedure."

(a) "From the material collected it appears that the mother's ability to independently care for her children and to ensure them a proper upbringing is limited. This is why the plaintiff is dependent on the help of her mother who comes to Ireland from time to time but currently due to health problems she is not able to help her daughter".

(b) "It does happen that the children may stay at home for 1-2 hours without any adult care. The emotional and educational situation of the children is also negative, especially since there is no regular contact with the father which does not allow for the building of a stable relationship and the strengthening of their father's presence in their lives and consciousness."

(c) "The mother, in spite of declaring the need for maintaining contact between the children and their father, is actually not actively doing anything to promote this and is in fact, by her behaviour, tending to build a false image of their father in the children's perception and marginalising his participation in their lives."

(d) "During psychological testing, the Plaintiff initially made normal verbal and emotional contact, but with time she became more and more agitated and reacted emotionally to the subject's discussed, was verbally aggressive towards her husband and impulsive. She was impatient, stressing the need to finish the test as soon as possible but simultaneously acting in such a way that the interview became more complicated and lasted much longer. She could not prevent herself from making provocative, aggressive, ironic and cynical comments to her husband."

(e) "She has declared that without any doubt her current relationship will last and forms a guarantee of security for her sons but at the same time she reveals difficulties in finding a place and meaning for her current life partner in the family structure."

"The psycho educational tests have allowed the experts to find a more favourable parental predisposition in the father than in the mother. In addition, his living conditions seem to be more stable for normal psychological development of the children. Having diagnosed a better parental predisposition in the father, the actual decision as to who will be exercising parental care in accordance with their abilities will be taken by the court".

"The Appeals Courts in Katowice, Poland is seized of separation proceedings issued at the instance of (Zofia) on 6 June 2007 in the District Court in Katowice and that the said Appeals Court has jurisdiction in matters relating to parental responsibility connected with those proceedings".

That agreement formed a recital to the court order dated 2 April 2009 which provided for the release of documents relating to the Northern Irish proceedings to the Appeals Court in Poland.

"The court declines jurisdiction in respect of the parties respective substantive applications under Council Regulation (EC) 2201/2003 of 27 November 2003 upon the grounds that the matrimonial proceedings issued at the instance of (Zofia) on 6 June 2007 in the District Court in Katowice were properly within the jurisdiction of the courts in Poland and the courts in Poland were first seized within the terms of the regulation from that date. The court accordingly dismisses the parties' respective applications."

This order brought an end to both Zofia's and Dominik's applications in Northern Ireland for residence orders.

The issues on the appeal against registration and in the alternative against enforcement

(a) Recognition is manifestly contrary to the public policy of the member state in which recognition is sought taking into account the best interests of the child see Article 23(a) of Council Regulation (EC) No. 2201/2003 ("Brussels II revised"). Zofia contends that the order dated 6 May 2008 is ambiguous and that it would be manifestly contrary to public policy to register an ambiguous order. She also contends that there are welfare issues which should lead to the conclusion that it is manifestly contrary to public policy.

(b) The children do not wish to return to Poland and that their views should be taken into consideration on matters which concern them in accordance with their age and maturity, see Article 24(1) of the Charter of Fundamental Rights of the European Union and Article 33 of Brussels II revised.

(c) That if the appeal against registration is not successful that enforcement procedures are governed by the law of Northern Ireland and that this court should decline to enforce it upon welfare grounds.

Legal principles in relation to recognition and enforcement

"A judgment relating to parental responsibilities should not be recognised:

(a) if such recognition is manifestly contrary to the public policy of the member state in which recognition is sought taking into account the best interests of the child;"

"[32] It seems to me that, in applying Article 15(2)(e) I have to give proper weight and effect to the language that is used. The article does not refer simply to recognition being contrary to the best interests of the child. It refers rather to recognition being contrary to public policy, taking into account the best interests of the child. Merely to consider the best interests of the child would be to review the Belgium judgment (which is clearly welfare based) as to a substance, which is forbidden by Article 19. I have to take into account the best interests of M, but ultimately to consider whether recognition is manifestly contrary to English public policy. To say that something is contrary to public policy is a high hurdle, to which the article adds the word 'manifestly'. This is an international Convention and I must apply it purposively, giving appropriate weight to the word manifestly."

"[13] … when a court enforces an order of its own one of the powers it may exercise, actually or implicitly, is the power to vary. That power is not available when enforcing under Brussels II. Further, within a purely domestic case the welfare of the child must be paramount even in the enforcement process, although consideration of obedience to court orders is important too.

[14] Under Section 2, Enforcement of Brussels II, however, the duty of, and discretion in, the court are different. Under Article 21 there is an overriding duty to enforce. There can be no review as to substance and only limited discretion under Article 24(2). There is no variation power. The duty is to make the foreign judgment happen and there is only such discretion as fulfilment of that duty requires. I agree with Mr Everall that the court has some discretion to 'phase in', if and to the extent that phasing in will eventually best make the foreign judgment happen. That is all. The moment the court exercises any more general discretion it will be reviewing the foreign judgment as to its substance or exercising a discretion outside the scope of Article 24(2). The target has to be to make the foreign judgment happen as soon as that can effectively be achieved. The position of the child, or of the adults, and the wellbeing of the child are all relevant. If, for instance, contact is forced too quickly so the child later refuses to go, that is not effectively to enforce or make the judgment happen. But welfare is not paramount or even the primary consideration".

Those are the principles which I seek to apply in this case.

The alleged ambiguity of the Polish court order dated 6 May 2008

"The father was entrusted with the exercise of the parental responsibility of the minors. It means he has full parental responsibility as it arises from the law. His rights and duties are only limited by the requirement to attain the mother's consent in the matters explicitly listed in the court order of 6 May 2009 (personal contents, the choice of school, profession, and means of medical treatment of the child)."

Welfare grounds in relation to recognition

Conclusion in relation to the appeal against registration

Enforcement of the order of the Polish Court

(a) that he will collect both children in Northern Ireland and arrange and pay for the transport of the children and their belongings to Poland; and

(b) that he will afford Zofia contact, both direct and indirect with the children in Poland in the terms set out in a detailed schedule until such time as the appropriate court in Poland makes an order dealing with contact or the parties otherwise agree.

I ordered Zofia to return both the children to Dominik at a date and time that allowed them to finish their school term in Northern Ireland, to participate in some activities which had been arranged in Northern Ireland but to arrive in Poland in reasonable time before Christmas so that they could use their holiday to re-establish contact with their paternal family in Poland and to familiarise themselves with their surroundings before starting school in Poland. I also requested the Official Solicitor, and she agreed, to attend upon the children at Zofia's home as soon as practicable for the purpose of explaining to them the Court's decision and the consequences for them. In the meantime and until the Official solicitor had spoken to the children I prohibited both Zofia and Dominik from communicating the decision of the court to either of the children. I also prohibited Zofia from removing the children or causing them to be removed from Northern Ireland without the leave of the Court, save for the purpose of placing them in the care of Dominik. I had previously directed that the children's passports be lodged in court and I gave permission for those to be released to Dominik. I also directed the Official Solicitor to speak to Gavin about the steps to be taken to secure the children's return to Dominik. I requested Zofia's solicitor to contact Zofia's spiritual advisor once the children had been informed by the Official Solicitor of the decision of the Court so that he might give assistance to her and to the children. I placed an obligation on Zofia to inform the Court within 48 hours of how she proposes to affect the return of the children to Dominik and fixed a review hearing with liberty to apply in the meantime.