C (A Child) (Abduction: Article 13(b))
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Newey,Sir Andrew McFarlane P |
| Judgment Date | 10 September 2021 |
| Neutral Citation | [2021] EWCA Civ 1354 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2021/0924 |
[2021] EWCA Civ 1354
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
FAMILY DIVISION
MRS JUSTICE ARBUTHNOT
FD20P00698
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Andrew McFarlane
President of the Family Division
Lord Justice Moylan
and
Lord Justice Newey
Case No: B4/2021/0924
Mr C Hames QC and Mr J Holmes (instructed by Eskinazi & Co Solicitors) for the Appellant Father
Mr H Setright QC and Mr J Evans (instructed by Henry Hyams Solicitors) for the Respondent Mother
Hearing date: 29 th July 2021
Approved Judgment
The father appeals from the order made on 4 May 2021 by Arbuthnot J (“the Judge”) on his application under the 1980 Hague Child Abduction Convention (“the 1980 Convention”) for the summary return of the parties' child (C), aged 8, to Poland. The Judge dismissed the father's application having determined that there was a grave risk that C's return to Poland would expose her to physical or psychological harm. The Judge also determined that C objected to returning to Poland but, as set out below, did not make any separate discretionary decision based on these objections.
In summary, the father contends that: (i) the Judge failed to apply the correct legal principles when determining the mother's case under Article 13(b) of the 1980 Convention; (ii) the Judge wrongly made or purported to make findings of fact; (iii) the Judge wrongly determined that the Polish authorities would not be able to protect C following a return to Poland; and (iv) the Judge's decision in respect of C's objections was flawed.
The father is represented by Mr Hames QC (who did not appear below) and Mr Holmes. The mother is represented by Mr Setright QC (who did not appear below) and Mr Evans.
For the reasons set out below, I have concluded that the Judge's decision has to be set aside and the matter remitted for a rehearing. This is regrettable having regard, in particular, to the duration of these proceedings already. However, although (I make clear) this does not provide any reason to delay determining the father's application under the 1980 Convention, it may provide an opportunity for the Polish courts, which are seised with parental responsibility proceedings, to make a welfare decision, or an interim welfare decision, dealing with whether C should remain living with her mother in England or whether they should return to Poland.
As the matter will be remitted, there is no need to consider the application made on behalf of the mother to rely on fresh evidence.
Background
I propose to set out only a very brief summary of the facts, given that the matter is to be reheard.
The parents and C are all Polish nationals. It appears that the parents, and certainly C, have each always lived in Poland. In any event, they were living together in Poland prior to C's, admitted, wrongful removal on 17 September 2020. The mother and the father married in 2009. Previously, the father had been in a relationship with the maternal grandmother.
The mother petitioned for divorce in Poland in October 2019. Those proceedings are continuing and are also dealing with parental responsibility issues. In her statement for the 1980 Convention proceedings, the mother said that she and the father separated for a period between October and December 2019 and again from March 2020. Following the latter separation, she said that they agreed that the father “could have contact with (C) every other weekend”. At some point the parents resumed living together.
The mother and C travelled to England on 17 September 2020. This was undertaken secretly and the father was unaware that they had left Poland until about two weeks later. The move was clearly pre-planned and the mother appears to have immediately started living with someone in England.
Proceedings
The father commenced proceedings under the 1980 Convention on 29 October 2020. At the first hearing, on 9 November 2020, directions were given for the parties to file and serve evidence and for Cafcass to provide a report dealing with C's “views, wishes and feelings in respect of returning to Poland”, her level of maturity and whether she should be separately represented.
This order did not deal with the issue of protective measures as required by the Practice Guidance: Case Management and Mediation of International Child Abduction Proceedings issued by Sir James Munby P on 13 March 2018. As will be seen, this contributed to the determination of the proceedings being delayed. There are a number of paragraphs in the Practice Guidance which make clear that this issue must be addressed as early as possible in the proceedings to avoid unnecessary delay. They include paragraphs 2.5(b), 2.5(d), 2.9(b), 2.9(d), 2.11(d) and 2.11(e). I would wish to emphasise the importance of this being undertaken.
The order of 9 November 2020 did deal with contact. It provided that contact between the father and C should take place remotely, twice per week, with each party agreeing that they would not denigrate or criticise the other or discuss the case with C.
The parties provided their respective statements in November and December 2020 and Cafcass provided its report on 18 December 2020.
At the next hearing, on 21 December 2020, directions were given for both parties to provide statements dealing with the issue of protective measures. At this hearing the mother made clear that she was relying on Article 13(b) and C's objections. The matter was set down for a final hearing on the first available date after 28 January 2021.
The mother provided her statement on 22 January 2021. This set out a number of measures that she sought, including a “protective order” prohibiting the father from coming within 100 metres of where she and C were residing.
The father did not provide his statement until 10 March 2021. It is not clear why it was so late. In this, he said that he would agree “not to go where (the mother and C) may be living or to (C's) school” and made a number of other proposals as to, for example, a temporary period of indirect contact. He pointed out that there is no Polish equivalent to an undertaking and that the specific protective order the mother sought (as referred to above) could only be imposed by a prosecutor and not by the civil court.
The next hearing, which should have been the final hearing, took place on 11 March 2021. At this hearing the court, “very unusually” (as Mr Setright submitted and I would agree), gave permission for the parties to obtain expert evidence “in relation to the procedure by which protective measures can be obtained in Poland … and the effectiveness of any such orders”. Neither party had sought this order, which was raised by the Judge at that hearing. The hearing could also not proceed because the interpreter for the mother had only been booked for one hour.
Expert evidence was duly obtained. This set out that, if made by the English court, some of the proposed protective orders sought by the mother would be recognised and enforceable in Poland, but not all of them would be, and that “not all of them in the event of a hypothetical breach by (the father) will result in a particular reaction from the Polish courts or other authorities”. In particular, an order made by the English court prohibiting the father from contacting or approaching the mother would not be enforceable in Poland. This was because, as the father had said, such orders “may only be imposed by a prosecutor or a criminal court on the basis of a criminal procedure”; they were not a civil matter. The report also noted that:
“in the event of any negative behaviour on the part of the (father), the (mother) has the option of reporting such a matter to the police or to the prosecutor. It should therefore be expected that these authorities would react to the above-mentioned violations immediately due to the ongoing police investigation with regard to the abuse of the defendant and (C). Such protective measures, in the event of a threat to the life and health of a minor and the defendant herself, are to be applied immediately, are immediately enforceable and the procedure for their application is free of charge. It should also be noted that the prohibition on the applicant's direct contact with the daughter would also prevent the applicant from picking the minor from school, etc.”
Additionally, the report stated that an order could be made by the civil court, dealing with parental responsibility, prohibiting or restricting the father's contact with C; “non-compliance with (such an order) will entail an appropriate legal response”. Violation of an order prohibiting contact would “constitute a criminal offence (which would be) subject to imprisonment of between 3 months and 5 years”. Such an order could only prohibit contact between the father and C and not between the father and the mother but, it was pointed out that, not only would breach of such an order constitute a criminal offence, such behaviour “would not be without a negative impact” and “would influence the court's final judgment” in the pending parental responsibility proceedings.
The final hearing took place on 19 and 23 April 2021.
There have also been a number of hearings in the Polish proceedings which have not yet been concluded.
The Judgment
The Judge summarised the mother's case as follows:
“The mother's case is that her relationship with the father has been punctuated by physical and verbal abuse and serious sexual assault including...
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