M v M and Others
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE BLACK |
| Judgment Date | 20 August 2008 |
| Neutral Citation | [2008] EWHC 2049 (Fam) |
| Court | Family Division |
| Date | 20 August 2008 |
| Docket Number | Case No: FD08P01420 |
[2008] EWHC 2049 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Black
Case No: FD08P01420
Mr Nicholas Anderson (instructed by Messrs Lyons Davidson) for the Plaintiff
Ms Alison Ball QC & Mr Stuart Fuller (instructed by Messrs Rowberry Morris) for the 1 st Defendant
Ms Melanie Carew (instructed by CAFCASS Legal) for the 2 nd Defendants
Approved Judgment
Hearing dates: 19 th & 20 th August 2008
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 20 th August 2008. It consists of 15 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.
1. This is a Hague Convention application by A B M (M) who is the mother of 2 children, J B M (b. 16 September 1999, therefore nearly 9, referred to here as J) and M Jerzej M (b. 25 September 2002, therefore nearly 6, referred to here as MJ). The Defendant is the children's father, J M (F). The children have been joined as parties to the litigation and have the benefit of a guardian, Mrs J S, and legal representation.
2. M seeks the return of the children to Poland. F concedes that he removed the children wrongfully from Poland but opposes M's application on two grounds which can be summarised shortly as settlement and children's objections.
3. This is the second Hague application that M has made in relation to the children, the first having culminated (by consent) in an order dated 5 March 2007 for the return of the children to Poland (“the first Hague order”).
4. There is little dispute about the history. The parents are both Polish. They were living together in Poland when the children were born but separated in September 2004. The children lived with M but continued to see F. In February 2005, F came to live in England. On 12 July 2006, the children came to England for what M thought was to be a holiday with F. They were due to return to her in Poland on 22 August 2006. F wrongfully retained the children in England, refusing to return them at the end of the holiday. F and the children lived with F's sister in her flat until the start of October 2006 and then moved to another flat in the same house as the sister's. F has been based there ever since. The children stayed there with him until he took them back to Poland on 27 or 28 March 2007 (the date is given variously), pursuant to the first Hague order. J attended at a local school from September 2006 until his return to Poland and MJ attended nursery.
5. Proceedings were already on foot in Poland when the children came to stay with F in the summer of 2006, M having petitioned the Lublin District Court by a document dated 30 June 2006 to “establish the place of residence” of the children with her.
6. Following F's failure to return the children after their 2006 holiday, M obtained a Polish order that they should stay with her until the court proceedings in the case were complete. F appealed unsuccessfully against this.
7. Meanwhile, M had began the first Hague proceedings in England by an originating summons dated 25 January 2007. F defended those proceedings on the basis of the children's objections and on the basis that there was a grave risk that the return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation. A CAFCASS report was prepared by Ms Kay Demery. Amongst other things J told her that he wanted to stay in England and MJ said he preferred England to Poland. J described how their mother thought they were to have a holiday with their father but they knew that F was bringing them to England for good. Both J and MJ told Ms Demery that they did not want to see their mother as she would do anything to keep them in Poland. From the entirety of her interview, Ms Demery concluded that the views expressed by the boys were contradictory and did not, per se, amount to an objection to returning to Poland. She thought they were operating at a level of maturity commensurate with their chronological age but that at 7 1/2 and 4 1/2, they were too young fully to understand the implications of the decisions that needed to be made about their future and neither had reached the age or level of maturity when their views would be the determining factor in the application.
8. The 5 March 2007 consent order provided for the children's return to Poland with their father by no later than 1 April 2007. Both parents gave undertakings in a form which has become quite commonplace in such proceedings. M's undertakings included an undertaking not to remove the children from F's care pending the first inter partes hearing before a Polish court and F's included an undertaking to provide M, through her English solicitors, at least 7 days prior to his return to Poland, with the address at which he and the children would be staying in Poland and an undertaking to remain with the children in the Lublin area pending the first inter partes Polish hearing. I enquired of Miss Ball QC, who represents F, whether F was in breach of his undertakings and whether that affected his right to be heard by this court. There seemed to be some room for debate as to whether there was a breach or not. Given that I had reached the conclusion that, as this is a case concerning children, I should hear full submissions on behalf of F in any event, it seemed to me that there was little to be gained in investigating further. F must be very conscious of the difficulty of his position, coming before this court to admit that for the second time he has wrongfully brought/retained the children here, breaching orders of the Polish court and, as became clear during this hearing, entering this country using passports for the children which he knew had been cancelled by the Polish authorities.
9. Following the children's return to Poland towards the end of March 2007, M saw them on 9 occasions. The parties do not agree about where F was living with the children at this point. F says he rented a flat approximately 700 yards from M's flat in Lublin but M says he was rarely there and in fact lived with his parents in Tarnobrzeg about 150 kilometres away. It is common ground that F was always present on contact visits. M says he was obstructive over contact; F says he told M that she could have contact any time she wished. He concedes that the children eventually enjoyed M's visits. The last contact visit was on 4 May 2007. M says that on that day she was carrying MJ in her arms and the child asked when she was going to take him home. F grabbed him and said “Now you won't see the children for a long time”. When they went back to his flat, F started to pack the children's belongings and told M they were going to Tarnobrzeg for a barbecue.
10. F seems to have given the children to understand that they had returned to Poland for a holiday. He had applied to the Lublin District Court, in a document dated 12 March 2007, for a change of the decision of 27 September 2006 transferring the residence of the children to him in England until the end of the proceedings and his subsequent communications with the Polish court underlined his wish to have the children living with him in England.
11. On 18 April 2007, F's application for a variation of the 27 September 2006 order was dismissed. On 20 April 2007, the Lublin Court considered a further interim application by M. Both M and F participated in the proceedings that day. The judge was of the view that M had a justifiable fear that the children could be taken abroad by F and so issued an interim order prohibiting F from leaving Poland with the children for the duration of the Polish proceedings and decided to submit a request to the Citizenship Matters Department for the cancellation of the passports of J and MJ. The passports were duly cancelled—notice of cancellation was provided to both M and F—but F remained in possession of the cancelled passports.
12. F was dissatisfied with the way in which the Polish proceedings were going. He has been very critical of the approach of the Polish courts. He requested that an independent court appointed supervisor be appointed to inspect the children's accommodation and it appears that this was done. He also appealed, unsuccessfully, against the refusal to vary the 27 September 2006 order.
13. F then took matters into his own hands and, on 5 June 2007, returned with the boys to this country without the knowledge or permission of M or the Polish courts. I am told that he was questioned for about an hour by the immigration authorities at Stansted airport because the Tipstaff had recorded the numbers of the passports of the children in connection with the first Hague proceedings, but he managed to get round that problem by explaining that those proceedings were over. Plainly, he did not alert the authorities to the fact that the children's passports had been cancelled in Poland. He and the children were allowed to enter this country. They went back to the flat they had been living in before. J went back to his old school the following week and MJ joined him there in the autumn term 2007. These have been the arrangements ever since.
14. On 23...
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