K v K
| Jurisdiction | England & Wales |
| Judge | THE HON. MR JUSTICE SUMNER,The Hon. Mr Justice Sumner |
| Judgment Date | 27 October 2006 |
| Neutral Citation | [2006] EWHC 2685 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD06P01342 |
| Date | 27 October 2006 |
[2006] EWHC 2685 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Sumner
Case No: FD06P01342
Miss Catherine Wood (instructed by Bindman & Partners Solicitors) for the Applicant
Miss Kowalska acted in person
Hearing dates: 24 October 2006
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is being handed down in private on 27 October 2006. It consists of 10 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Introduction
This is an application under the Hague Convention of 7 July 2006. It is in respect of 9 year old Katarzyna Kowalska who was born on 18 May 1997. Her parents are both Polish nationals. The Plaintiff is her father, 31 year old Mr Arkadiusz Kowlaski. She was brought to the UK by her maternal grandmother to join her mother who has been working here since May 2005. The application is opposed by Katarzyna's mother, 27 year old Joanna Kowalski.
The Hague Convention
The Hague Convention governs the situation where a child is removed by one parent from country A to country B and both countries are signatories to the Convention. If before the removal the child was habitually resident in country A, and the parent remaining in country A had rights of custody, then the mandatory terms of the Convention apply to ensure the prompt return of the child. The Child Abduction and Custody Act 1985 incorporated the Convention into UK law.
There are however defences to a claim under the Convention. By Article 13, country B is not bound to return a child if the parent in country A consented to or acquiesced in their removal. Country B "may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of her views". The mother in this application claims that the father did both consent to Katarzyna's removal and then acquiesced in her detention. Finally she says that Katarzyna objects to returning to Poland and is of an age and maturity for the court to take account of her views.
Time limits and Katarzyna's objections to being returned – the law
In March 2005 the regulations known as Brussels II Revised came into operation concerning the recognition and enforcement of judgments. By paragraph 17 it is stated –
"In case of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11."
There are 2 important provisions within Article 11 relevant to this application. Under Article 11.2 and 11.3 –
"2. When applying Article 12 and 13 of the 1980 Hague Convention it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.
3. A court to which an application is made in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.
Without prejudice to the first sub-paragraph shall, except where exceptional circumstances make this impossible, issue its judgment no later than 6 weeks after the application is lodged."
In Vigneux v Michel (2006) EWCA Civ 630, Thorpe and Wall LJs drew particular attention to these provisions governing the time within which applications are to be determined. They were not observed in this case. It has resulted regrettably in a judgment 3 1/2 months after the issue of the application. Before I come to the history of the proceedings I should mention the application of Article 11.2 to this hearing.
It will be noted that the wording relating to the age and maturity before a child objections should be taken account of are similar to those governing the circumstances when a child is given the opportunity to be heard. This has been properly respected in this case and Katarzyna has twice been seen by experienced CAFCASS reporters (formerly called Welfare Officers). I am satisfied that Katarzyna's views have properly been heard.
Proceedings
At the time the application was issued on 7 July 2006, the address of the mother and Katarzyna was not known. A location order was made. A week later on 14 July the mother was served. Directions were given on 20 July with a return date for the 4 th August, itself a week beyond the 6 week period. On that date directions were given for evidence to be filed by the father with CAFCASS was to see Katarzyna on 11 August and report for a final hearing on 18 August.
The mother has throughout acted in person. On 18 August the hearing was adjourned until 1 September to allow the mother to find time for legal representation and for mediation to be considered. It was made clear it was to be a final hearing date. On 1 September there was a lack of judges to hear the matter and the mother had not attended as her car had broken down. It was adjourned to 8 September when it came before me. The mother did not attend and I put it over to 15 September with a direction that the mother attend on that occasion. This was backed with a penal notice. The history repeated itself. There was no court time on 15 September and it went over to 24 October, 5 weeks ahead. In the meantime there was to be a second CAFCASS interview following a telephone conversation between the father and Katarzyna.
The matter came before me with the father represented by Miss Wood and the mother unrepresented despite her efforts. Her partner, Mr Taylor, appeared as her Mackenzie Friend to assist her.
I heard from Mr Kirby and Mr Hartley, 2 experienced CAFCASS officers from the Principal Registry, and I heard each of the parties. There was a translator for the father. I turn to the background as I find it to be.
Background
The parties were married in Poland in January 1997. Katarzyna was born in May of that year. They separated in 2000. The mother went to live with her mother. There was a decree absolute in September 2002. Part of the order granted the joint custody of Katarzyna to her parents. She was to live with the mother. An opinion has been obtained from a barrister Mr Korneszczuk in Poland. He states that the joint custody provision in the order means that the mother could not legally decide either about change of place of residence of the child or the child's leaving abroad without the consent of the father.
In May 2005 the mother moved to the UK to take up employment with TNT Ltd to increase her income. This was to provide sufficiently for Katarzyna. She receives a substantially greater income than she did in Poland. Katarzyna thereafter lived with her maternal grandmother. She saw the father most weekends and for periods during the holidays.
On 24 March 2006 Katarzyna spent the weekend with her father. There was according to him no mention of any move. It is common ground that on 29 March 2006 Katarzyna flew with her maternal grandmother to the UK to join her mother in Nuneaton.
There were a series of text messages on the following day. The first one from Katarzyna read "I am at my mum's". The father says he replied asking whether Katarzyna was at her mother's in England and when she would be back. The answer which has been retained is "I don't know when I am coming back. I will go to school here".
The same day in the evening the mother sent a message to the father in the following terms –
"Kate is with me in England. She goes to school on Monday. She won't be back to Poland for the time being."
The mother's case can be put shortly. She never heard again from the father until the location order was executed with the police arriving at their home in July 2006. He had agreed at Christmas 2005 that Katarzyna could go permanently to the UK. He did nothing about it once he knew she was going to stay and Katarzyna now objects to returning to Poland. The mother has had the disadvantage of presenting her own defence. I have been conscious of this throughout. Fortunately in this case no difficulties of law arise; it is my findings in relation to the facts which are crucial. Bearing that in mind, and as the father was present in court, I gave permission for the mother and the father to give oral evidence. I have been greatly assisted by hearing the parties give their account and be questioned on it.
Rights of custody and the lawfulness of Katarzyna's removal to the UK on 29 March 2006
I have considered the order of September 2000 and the opinion of the lawyer Mr Korneszczuk: there has been rightly no dispute that when Katarzyna left Poland she was habitually resident there. The opinion has not been challenged. I conclude that the father had rights of custody when she left. Finally it was in breach of Article 3 of the Convention and therefore unlawful for Katarzyna to be removed from Poland on 29 March 2006. It is for the mother to prove consent and acquiescence (see Re P (Abduction: Consent) (2004) 2 FLR 1057.
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