F v M and Another (Abduction: Acquiecence: Settlement)
| Jurisdiction | England & Wales |
| Judgment Date | 2008 |
| Year | 2008 |
| Date | 2008 |
| Court | Family Division |
Child abduction – Acquiescence – Settlement – Child being wrongfully removed from Poland by mother to England – Father applying for summary return of child under Hague Convention – Whether father had acquiesced – Whether child settled in England – Whether court should exercise discretion to return child if settled – Convention on the Civil Aspects of International Child Abduction 1980, art 13.
The married Polish parents had a child, N, who was born in Poland. The family had always lived in Poland until the mother came to England for two months to work. When she came back she accused the father of having an affair and said that she would move to England with the child but initially moved out to live with her brother. In March 2006, the father applied to court for parental authority which was followed by the mother filing a divorce petition and at the same time requesting limitations on the father’s parental authority. In May 2006, a Polish judge made an interim decision that the father should have custody, however, by that time the mother had left for England with the child. The divorce proceedings progressed through the Polish courts from the period of removal until the issue of father’s application for summary return of the child to Poland under the Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention) in March 2008. The mother argued in defence that (i) the father had acquiesced and (ii) that, given the interval between the wrongful removal and the Hague Convention application, the child had settled in England.
Held – (1) For the purposes of art 13 of the Hague Convention, the wronged parent must have ‘acquiesced in the removal or retention’. In the instant case, the father had not acquiesced within the meaning of art 13, whether in the normal sense of acquiescence or in the exceptional sense. The father had not consented to the continued presence of N in England, nor had he acted in such a way as to lead M to think that he had. His focus had been on the proceedings in Poland in the course of which he had consistently sought custody and he had not been advised properly about the possibility of a Hague application; Re H (minors) (abduction: acquiescence)[1997] 2 FCR 257 applied.
(2) When exercising the discretion whether to return a child, the Convention objectives did not necessarily carry more weight than other considerations. The further one got from the speedy return envisaged by the Convention, the less weighty the general Convention considerations had to be. Although it was unusual to order a summary return where settlement had been found, it was possible. In the instant case, the child was settled in England, however the Polish courts were the best forum for making a final decision on the child’s future. The court would make an order for return but suspend it pending further applications in the Polish courts by the mother; Cannon v Cannon[2004] 3 FCR 438 considered, Re M (children) (abduction)[2008] 1 FCR 536 applied.
Per Black J. I would resist the development of an unduly technical approach to the question of settlement, or indeed acquiescence. The Hague Convention is designed to establish procedures to ensure the prompt return of children to their state of habitual residence and our courts have geared themselves to providing a speedy resolution of Hague disputes. Whilst I appreciate that it is no longer possible in settlement cases to return a child almost as soon as he or she has arrived here wrongfully, prompt resolution of the child’s future is still required. The more complexity and sophistication that attaches to the articles of the Convention, the longer it takes courts to determine cases and the more appeals there are likely to be.
Cases referred to in judgmentCannon v Cannon[2004] EWCA Civ 1330, [2004] 3 FCR 438, [2005] 1 WLR 32, [2005] 1 FLR 169.
H (minors) (abduction: acquiescence), Re[1997] 2 FCR 257, [1997] 2 All ER 225, [1998] AC 72, [1997] 2 WLR 563, HL.
M (children) (abduction), Re[2007] UKHL 55, [2008] 1 FCR 536, [2008] 1 All ER 1157, [2007] 3 WLR 975, [2008] 1 FLR 251.
Mark v Mark[2005] UKHL 42, [2005] 2 FCR 467, [2005] 3 All ER 912, [2006] 1 AC 98, [2005] 3 WLR 111.
Puttick v A-G [1979] 3 All ER 463, [1980] Fam 1, [1979] 3 WLR 542.
ApplicationThe Polish father applied for summary return of his child to Poland under the Hague Convention. The mother objected to the child’s return. The facts are set out in the judgment.
Richard Harrison (instructed by Lyons Davidson) for the plaintiff.
Joanna Hall (instructed by Kewley Radley) for the first defendant.
Edward Devereux (instructed by Reynolds Porter Chamberlain LLP) for the second defendant.
Black J.[1] N is six-and-a-half years old, having been born [on] October 2001. She is the daughter of F and M who are married. Both parents and N are Polish nationals. I am dealing with F’s application under the Hague
Convention on the Civil Aspects of International Child Abduction (The Hague, 25 October 1980; TS 66 (1986); Cm 33) and under the inherent jurisdiction of the High Court for an order requiring the return of N to Poland.
[2] Until 27 May 2006, N had always lived in Poland. On that day, M left Poland with N by bus to come to England where they have been living since. F had no knowledge of the plan to remove N and was not in agreement with it. M concedes that the removal was wrongful.
[3] M opposes F’s application on two bases. She argues that F has acquiesced in the removal (art 13(a)) and/or that more than one year had elapsed by the time F began his Hague proceedings and N is now settled in her new environment (art 12).
The history: Poland[4] The detail of the history in Poland is often very unclear from the documentation which is at times contradictory. I have set it out as best I can below. Oral evidence might have resolved quite a few of the uncertainties but one must be mindful of the summary nature of Hague proceedings in which live witnesses are by no means a regular feature. No direction as to oral evidence had been sought in advance of the hearing in front of me. At the hearing, neither parent invited me to hear oral evidence but I was invited by the guardian to do so. This invitation related principally to the evidence that the guardian could give on the issue of N’s settlement in England, including particularly her observations of contact which had been attempted unsuccessfully at her offices between N and F on the morning of the first day of the hearing. I already had a helpful report from the guardian about N’s present living circumstances and I requested that the guardian should also put her account of the contact in writing which she did. Neither party disputed what she said about it. As to N’s current circumstances, M’s evidence is in line with that of the guardian and F has no material on which to dispute their accounts. The argument in regard to settlement thus relates not to what the factual situation is but to whether that factual situation amounts to settlement for the purposes of the Hague Convention or not. In the circumstances, I did not consider that it was necessary for the guardian to give evidence in connection with the settlement issue. Mr Devereux for the guardian indicated that the guardian was neutral as to whether there should be oral evidence on the question of acquiescence. I decided that the limited oral evidence that could be heard in the two days allocated for the case would be unlikely to shed sufficient light to justify taking that course. I have been conscious, as one must always be in a Hague case, of the need to make a decision without undue delay, albeit that the speed of determination may perhaps be tempered to a degree in settlement cases given that the major objective of the Convention—to secure the swift return of children who have been wrongfully removed from or retained away from their country of habitual residence—can no longer be achieved. As it was, reading and legal argument took up the full two days of the hearing, without time even for this judgment to be prepared and delivered. Finding
time for oral evidence to be heard would have meant the postponement of my determination which, in my view, would not have served N’s interests in that the improvement in understanding that it might have produced would have been insufficient to justify the delay inevitably involved.
[5] M and F were married on 19 May 2001 when M was already pregnant with N. Their marriage was not entirely without incident and they appear to have separated at least once before their final separation but become reconciled.
[6] On 5 December 2005, M came to England on her own to work, leaving N with F. M says that this was to earn money to furnish the flat which they had recently purchased with assistance from the paternal grandmother.
[7] F thought that whilst M was away their communications lacked warmth and wondered if she had met someone else. She returned towards the end of January 2006. He says that almost immediately she arrived, she said she did not love him and threw her wedding ring on the floor. His case is that after three days she moved out and went to live in her brother’s flat, taking N too.
[8] M’s case is that F had been having an affair before she left and continued to do so whilst she was away. Accordingly, upon her return, she told F she was not prepared to put up with this and that she intended to leave with N and move to England. She agrees that she moved with N to live with her brother but says that this followed F changing the locks so she could not get into the flat.
[9] M’s case is that F brought her belongings and N’s to her and said he wanted nothing more to do with N and did not ask to see her until March 2006. This assertion that F was washing his hands of N does not sit easily with the letter F wrote on 1 February 2006 to the Director of Citizenship Matters and Migration Department seeking to ensure that N was not removed from Poland by...
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