K v K
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb |
| Judgment Date | 05 July 2021 |
| Neutral Citation | [2021] EWHC 1846 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD20P00034 |
[2021] EWHC 1846 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985
AND IN THE MATTER OF COUNCIL REGULATION (EC) NUMBER 2201/2003
(BRUSSELS II REVISED REGULATIONS 2003) (BIIR)
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Cobb
Case No: FD20P00034
Henry Setright QC and Harry Langford (instructed by Access Law LLP) for the First Appellant (father)
Jamie Niven-Phillips (instructed by Cafcass Legal) for Second to Fourth Appellants (Children)
The Respondent (mother) did not appear and was not represented
Hearing date: 22 June 2021
Approved Judgment
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
This judgment sets out my reasons for allowing an appeal brought before the court under Chapter III ( Recognition and Enforcement) of Council Regulation (EC) No.2201/2003 (‘ BIIR’), specifically Article 33. For the avoidance of doubt, notwithstanding the departure of the UK from the EU on 31 December 2020, BIIR continues to apply under the transitional arrangements for cases, such as this one, which were issued on or before 31 December 2020.
The appeal is brought by a father and separately by his three children 1, A, B and C, against the registration by Deputy District Judge Hodson on 22 July 2020 of a Polish custody order which was made on 19 December 2016 (“the December 2016 order”). The relevant part of the December 2016 order vested custody and care of the three children with the mother in Poland. In fact, the children are currently in the care of their father and living in England.
Separate proceedings under the Child Abduction and Custody Act 1985 (incorporating the 1980 Hague Convention on the Civil Aspects of International Child Abduction (‘the 1980 Hague Convention’)) were issued by the mother in 2020; in those proceedings the mother sought a summary return of the three children to Poland. By judgment delivered in October 2020, the mother's application for a summary return order was refused (Mr A Verdan QC sitting as a Deputy High Court Judge) (this is reported as Re S [2020] EWHC 2940 (Fam)).
The appellant father is represented in this appeal by Mr Henry Setright QC and Mr Harry Langford; the children by Mr Jamie Niven-Phillips. The mother did not play any part in the appeal hearing; I discuss her non-participation in the next section of this judgment below.
For the purposes of this appeal, I read the extensive court bundle of documents, and the relevant authorities; I heard oral submissions from Mr Setright and Mr Niven-Philips. I regard it as important to give a reasoned judgment, given the continuation of proceedings in Poland, and the absence of any formal concession on the appeal from the absent mother.
The mother's absence from the hearing of the Appeal
In pursuing the 1980 Hague Convention proceedings, and in defending the BIIR appeal proceedings during 2020 and into 2021, the mother has hitherto been represented by distinguished and experienced solicitors and leading and junior counsel.
On 20 May 2021, the Court and the father's lawyers were notified by the mother's solicitors that they were no longer instructed and were applying to come off the record. The father's solicitor, Mr Parsons, thereafter communicated with the mother directly by e-mail, in an attempt to confirm her engagement with this appeal; Mr Parsons has filed a statement to which he has exhibited copies of several e-mail communications
with the mother. The mother's messages to Mr Parsons indicate strongly that she did not intend to attend, or take part in, the appeal hearing, that she proposed to take no further steps in any further English proceedings awaiting the outcome of the Polish proceedings, that she considered that the appeal should be “cancelled” and/or that she wanted the “case to be withdrawn”; she stopped short of indicating that she concedes the outcome of the appealI was separately advised that on 15 June, the mother and father had an exchange of communications by social media (WhatsApp). This exchange was translated for me at the hearing. In this exchange the mother confirms (I shall not repeat the profanities here) that she wanted the father's solicitor to “stop writing to me” and to “leave me alone”.
During the morning prior to the hearing, the HMCTS-appointed Polish language interpreter called the mother's mobile phone 22 times in an effort to speak with her. She did not answer. He left two voice-messages asking the mother to contact him, given that the hearing was due to begin. She did not respond. I delayed started the hearing until 11:00hs, but she did not sign onto the video platform. I am aware that the mother successfully participated in the 1980 Hague Convention proceedings in September 2020 by video platform, so this medium is not unfamiliar to her.
In the circumstances, I concluded that the mother had knowingly chosen not to take part in this appeal, and I resolved to continue in her absence.
Background
The background can be shortly stated. The mother and the father are both Polish; they are both aged 38. They met at school, and formed a relationship as young adults; in 2005 they moved to the USA and in the following year they married. The three children were born in the USA; they are now aged 15, 11 and 9 (two girls and then a boy). In 2012 the entire family returned to Poland and they lived initially with the paternal grandmother. In 2014, the father moved to England on his own to find work. The marriage came to an end in 2015.
In December 2016, the Family Court in Poland made a number of orders, including the dissolution of the marriage. The order contained the following (in translation):
“… exercising parental responsibility over the minor children of the parties, which are: [A], [B], [C], entrusts both parents, determining the whereabouts of minor children to the plaintiff [mother].”
The order went on to impose a child maintenance obligation on the father, and provided for the father to have contact with the three children, which was to include one month every summer holiday.
The children had contact with their father in 2017, and visited him in England for their holidays in 2018.
They visited their father in England again, as per the court order, in 2019, arriving towards the end of July. At the end of that visit, the father did not return them to Poland and/or to their mother; the children started in school in England. The father issued an application in the Polish court for variation of the December 2016 order; he cited concerns about the mother's harsh parenting of the children and her personal conduct, including alcohol abuse. He averred that the children did not wish to return to Poland or to her. By order of the Polish Court of 8 November 2019, that application failed; the court declared that the father had failed to demonstrate that an interim variation of the December 2016 order was in the children's best interests. The father's appeal against this order was refused. The mother then issued an application for the summary return of the children under the 1980 Hague Convention in this jurisdiction. The children were joined as parties to those proceedings and represented by Cafcass Legal.
In July 2020 the mother separately applied for registration of the December 2016 order under Article 28(2) of BIIR. This was granted by Deputy District Judge Hodson. The father issued a notice of appeal against the registration in accordance with rule 31 Family Procedure Rules 2010.
In September 2020, the combined applications (i.e., for summary return and for appeal against the registration) came before Mr A Verdan QC sitting as a Deputy High Court Judge. Having heard argument, and having been referred to several authorities on the issues, he determined, as a preliminary issue, that the application under the 1980 Hague Convention should be determined first. He heard submissions on that application, following which he decided that:
i) The children were habitually resident in Poland at the material time that the mother's rights of custody were breached;
ii) A (aged 15) objected to returning to Poland, and that objection fell within the exceptions offered by Article 13 of the 1980 Hague Convention;
iii) There was a grave risk of physical and/or psychological harm to the three children if they were to return to Poland and it would further be ‘intolerable’ for them if they were separated (i.e., if A stayed, but B and C were required to return); he found that there were no effective protective measures which would afford the children a necessary safeguard;
iv) In exercising his discretion, he decided against a summary return of the children.
A fully reasoned judgment explaining his reasons for those orders was delivered on 30 October 2020 ( [2020] EWHC 2940 (Fam)).
The mother sought permission to appeal; this application was refused on the papers by Moylan LJ in December 2020.
As far as I know, the mother took no steps under Article 11(6)-(8) of BIIR to bring the non-return order to the attention of the Polish Court.
On 9 December 2020 the father formally sought permission to amend his Notice of Appeal in the BIIR appeal process to plead reliance on Article 23(e)...
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