B v L
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb |
| Judgment Date | 17 August 2022 |
| Neutral Citation | [2022] EWHC 2215 (Fam) |
| Docket Number | Case No: ZC22P00529 |
| Court | Family Division |
[2022] EWHC 2215 (Fam)
THE HONOURABLE Mr Justice Cobb
Case No: ZC22P00529
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Alistair Perkins (instructed by Josiah-Lake Gardiner) for the Applicant (father)
Philip A. Bowen (instructed by Direct Access) for the Respondent (mother)
B v L (Removal to Poland: Unmarried Father: Rights of Custody: Declarations)
Hearing dates: 16–17 August 2022
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Cobb
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction
The applications before the court concern one child, a girl aged approximately 2 1/2, who I shall refer to as ‘M’. M's father is the Applicant (hereafter “the father”); M's mother is the Respondent (“the mother”). The mother (aged 36) is Polish but has lived in England for nearly all of her adult life; the father (aged 31) is American, and since March 2021 has lived in England. M lives with her mother and, since 7 March 2022, they have been in Poland.
By primary application issued on 6 April 2022, and supplemented by subsequent applications – made both formally and informally – the father seeks the following relief:
i) A declaration that M was habitually resident in England as at 7 March 2022 (the date she left England); alternatively, that M was habitually resident in England as at 6 April (the date of his primary application) and/or 7 April 2022 (the date of the first order);
ii) A declaration that at the time M was removed to Poland on 7 March 2022, the father (who does not have parental responsibility for M under English law) nonetheless had ‘rights of custody’ in respect of her, and that he was exercising those rights of custody;
iii) A declaration that the removal of M from the jurisdiction was in breach of those rights of custody and therefore wrongful;
iv) A declaration that this court has jurisdiction to make substantive orders in respect of M (including a child arrangements order, prohibited steps and specific issue orders, including an order that M is returned forthwith from Poland) under sections 1 – 3 of the Family Law Act 1986 and/or under Articles 5 and 7 of the Convention on Jurisdiction, Applicable Law, Recognition and Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996 (“the 1996 Hague Child Protection Convention”);
v) A declaration that the removal of M from this jurisdiction to Poland was wrongful within the meaning of Article 3 of the 1980 Hague Convention; this relief is sought in order to assist the father's claim in Poland, see below (see section 8 of the Child Abduction and Custody Act 1985 and Article 15 of the 1980 Hague Convention);
vi) An order vesting parental responsibility of M with the father pursuant to section 4(1) of the Children Act 1989.
For the purposes of determining these applications, I read the statements of the parties, some selected inter-solicitor correspondence, the skeleton arguments of counsel, and I heard oral argument. The hearing was conducted in a hybrid format.
At the outset of the hearing, Mr Bowen invited me to adjourn the hearing to await the outcome of the father's newly-issued application for summary return issued in Poland under the 1980 Hague Convention. Mr Perkins opposed the application; as indicated above (§2(v)), he asked me to make a determination which, he argued, could be of assistance to the Polish Court. I rejected the adjournment application on the basis that, in my judgment, this court could properly proceed to determine whether it could exercise substantive jurisdiction in relation to the child based on her habitual residence.
Mr Bowen made a secondary, tentative, application for me to hear oral evidence relevant to the question of habitual residence and/or rights of custody; I pressed him to identify the specific issues on which oral evidence may be probative. At the end of that exercise, I concluded that oral evidence would not in fact assist.
At an earlier case management hearing before Keehan J (on the 18 May 2022), I note (it is recorded on the face of the order) that the parties had agreed to attend mediation. Following that hearing, I am advised that the father submitted the relevant documentation to the Reunite Mediation Service. Earlier this month, Reunite Mediation Service informed the father's solicitors they had not been able to make contact with the mother. Mediation has therefore not happened. This is more than disappointing: it is a wasted opportunity for the parties to take some collective responsibility for the future arrangements for their child.
Background
The mother and father met in Spain in or about 2019. Their relationship was extremely short-lived, and they separated even before the mother knew she was pregnant. In 2020, M was born; she is their only child. DNA evidence confirms the father's paternity. During 2020, the father made a number of visits to the UK from America (where he then then lived) to visit M.
In 2021, the father relocated permanently from America to the UK, so that he could live closer to M. He was able to see M regularly. There is some dispute on the face of the papers as to the precise amount of time which the father spent with M, but it is reasonably clear – and I so find – that his contact with her was regular, extensive, and mutually enjoyable. I find (indeed this is not really in dispute) that in the period immediately after his relocation to this country, he saw her approximately three times per week during the week, and he often stayed with the mother on a Saturday night so that he could spend Sunday with the mother and M. The mother agrees that Sundays would be a ‘family’ day involving all three of them. Over a period of two weeks, I find that he looked after M for eight consecutive half-days on his own (when M was ill) while the mother worked 1.
By February 2022, the father's contact with M had settled to an arrangement whereby he would be with her between 5pm and 7.30/8.00pm on Wednesdays and Thursdays and between 9.30/10am and 5pm on Sundays, at the mother's home. Through solicitors, the parties were negotiating a more formal shared care plan, inter alia providing for M to stay overnight at the father's home.
Additional to the visits described above, the mother, father, M, and members of the father's family spent time away together in 2021 – in October and at Christmas. In an undated statement filed with the court (believed to be May 2022), the mother refers to
the father's contact with M in England as “sporadic”; in light of the agreed position on contact, I reject that descriptionSome of the relevant inter-solicitor correspondence has been placed before me. I note that on 16 February 2022, the mother's solicitors corresponded with the father's solicitors in these terms:
“[The mother] … hopes that arrangements for [M] can be reached in an amicable and constructive way by agreement without the need for court proceedings …
… [The mother] fully supports [the father] having a full relationship with [M] but in the best interests of [M] contact must be built up gradually and at a pace suitable for her given her age …. [the mother] has never been opposed to [M] having a relationship with [the father]…
[Specific proposals for the father's time with M are set out in the letter, then…]
At the end of the 3-month period and provided that [M] has settled into the new routine [the mother] is agreeable to discuss overnight staying contact.”.
On 22 February 2022, in setting out the father's specific counterproposals for the build up of contact, the father's solicitor wrote:
“There is no question/dispute as to [M]'s paternity and it makes sense therefore for her birth certificate to reflect that fact and for her father's name to be entered on the certificate. Please confirm that this is agreed…”
In the same letter, the father's solicitor set out the financial provision offered by the father, including a willingness to submit to assessment by the Child Maintenance Service.
On 3 March 2022, the mother's solicitors set out further detailed counterproposals for the build up of the father's time with M. The proposals expressly contemplated:
i) That the father would play a “significant” role in M's life;
ii) Contact routinely taking place at the father's partner's home in London;
iii) Contact taking place on sequential days of the week.
I pause to observe that all of the mother's proposals set out in this correspondence would be utterly inconsistent with M living in Poland and the father living in England.
In the same letter, it was said:
“The sooner [the parents] can agree arrangements the sooner overnight contact can commence. [The mother] will discuss re-registering [M]'s birth directly with [the father] once overnight contact commences.”
Interestingly, on the mother's proposal in this letter, overnight contact was scheduled to begin on 9 July 2022.
On or about 3 March there was an argument between the parties. It is agreed that voices were raised, and that relations became ‘heated’. The argument appears to have been about the future progress of relationship between the father and M; the father said that...
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