Re C (abduction: article 13(b) & child’s objections)
| Jurisdiction | England & Wales |
| Judge | COBB J |
| Judgment Date | 09 February 2022 |
| Court | Family Division |
Abduction – Grave risk – Child’s objections – Evidence of domestic abuse including direct harm to child – Enforceability of protective measures in Poland – Father’s established inability to regulate his behaviour – Exercise of discretion – Relevance of settlement – Jurisdiction under BIIa resting with Polish courts.
The parents were both Polish; they married in 2009 and had a child together. The father had previously had a relationship with the mother’s mother (the maternal grandmother), by whom he had a daughter, now 23 years old; this daughter was therefore a maternal half-sister to the mother and both half-sister and maternal aunt to the child.
In 2019, the mother issued divorce proceedings in Poland, alleging adultery; these were served on the father in early 2020. However, the relationship continued for many more months. The mother alleged that the relationship was significantly blighted by physical, emotional and sexual domestic abuse, perpetrated in a home environment characterised by controlling and coercive behaviour by the father. The mother claimed that the child had been exposed to this domestic abuse, and adversely affected by it. She further alleged that the father abused alcohol and suffered from mental ill-health.
In September 2020, the mother removed the child from the family home, together with the family’s pet dog, telling the father that she was going to visit an aunt. Instead, she travelled to England to join a man with whom she had formed a relationship, taking money from a joint bank account with her. The father alleged that shortly after this, the mother’s new partner contacted him and, using foul and threatening language, told the father to leave the mother alone. During a phone call, the child told the father that she had made a long journey and showed him the uniform for the English school she was going to attend. The father then applied, in October 2020, for the child’s summary return to Poland under the 1980 Hague Convention. The mother resisted the return, alleging both that there would be a grave risk of harm if the child were returned, under art 13(b), and that the child objected to a return.
At a case management hearing in November 2020, the father formally agreed that ‘he would not denigrate or criticise the mother to C or discuss the case with her during the contact period’; the mother gave a similar assurance. In March 2021, the father filed sworn evidence describing his indirect contact, by facetime and phone, as going well, describing how the child ‘has been expressing longing for me more and more’. However, the mother produced two transcripts of those conversations which gave a very different picture. In the first transcribed call, the father told the child about the imminent court hearing, advising her to ‘pack her bags … your days in England are numbered’. The child became distressed and told her father that she did not wish to speak with him; the father replied with a threat. In the second conversation (which took place in April 2021, after the father already knew that the first conversation had been recorded and submitted to the court), the father and child argued over whether she would be required to return to Poland at the hearing scheduled for the following day, and the father followed this up with a plain threat to the mother. The father accepted that these conversations were ‘not acceptable’, and that they would inevitably have caused the child ‘concern and distress’.
Between these two conversations, in March 2021, the father had sent a lengthy SMS message to the mother, including the following: ‘… you’re going to land yourself in prison … I will destroy you in courts you will pay me back for all those years of my life that I spent living with a whore because who would do such a thing and if God forbids anything happens to the child than I will f*** both of you up. You no longer exist for me, you whore, but God forbids anything happens to [the child] then I will find you even if it’s at the other side of the world … don’t be going back to [her or the father’s home address] because that’s where whores get stoned to death.’ The father did not deny that he had sent this, and other, abusive messages to the mother, explaining his language as the result of distress and a sense of helplessness in response to the separation.
The original judge did not hear any oral evidence, and refused the father’s application for the child’s summary return to Poland in May 2021. The father’s appeal was allowed. Because of the delays associated with the appeal, this was likely to be one of the last abduction cases before the English court to which the provisions of Council Regulation 2201/2003 (BIIA) applied.
Meanwhile, child welfare proceedings linked to the divorce had been ongoing in Poland since August 2019. The Polish court had dismissed applications by each parent for substantive orders in relation to interim child arrangements. A report from a multi-disciplinary psychological/social work team, largely based on interviews with the father conducted in May 2021, was unfavourable to the father, but he had formally challenged the report, mainly questioning its methodology. The mother had reported her allegations of abuse to the Polish police; however, slow progress had been made with the criminal investigation, which had been suspended altogether from May 2021 until January 2022. The father had not been charged with any criminal offence in Poland and was being treated, currently, as a ‘witness’.
The father had had no contact with the child since the beginning of 2022; he complained that the mother had not logged in to the Facebook messenger site at the appropriate time to receive his call. The mother disputed this.
The mother filed detailed evidence in support of her case that she had been subjected to multiple forms of domestic abuse. This was corroborated by the evidence of third-party witnesses, including the father’s adult daughter, the child herself, who was now 9 years old, and to a lesser extent the authors of the Polish social work report. A photograph was produced of an injury to the child’s head, allegedly caused by the father, although he maintained that the injury had been accidentally caused by his granddaughter. Certain protective measures were proposed and the court heard evidence as to the enforceability of such measures in Polish law.
Held, dismissing the father’s application—
(1) If the mother’s allegations of abuse were true, or even largely true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation in the event of her return to Poland. She had filed powerful substantive evidence in support of her case. The court drew particularly on the evidence (albeit unproven) that the child had been directly involved in incidents of domestic abuse (as she herself alleged), and had further allegedly been the victim of direct harm herself. The court had considered how the child could be protected against that assessed risk, and had accordingly reviewed with care the father’s proposed protective measures (see [37], [38], below).
(2) While ordinarily the Polish authorities should be regarded as capable of protecting victims of domestic abuse, the unchallenged evidence in this case was somewhat at variance with this proposition. ‘… the restraining order against the applicant prohibiting from approaching the defendant and keeping her address confidential from him should be considered impossible to enforce in the light of the Polish law’ and ‘the prohibition of the applicant from contacting the defendant and the prohibition of approaching her at a certain distance could not result in sanctions against the applicant in the event of failure to comply with them by the applicant, because according to Polish regulations they may only be imposed by a prosecutor or a criminal court on the basis of a criminal procedure and not a civil matter’. The court was no more reassured by the actions of the Polish prosecuting authorities; the progress of the investigation into the allegations of abuse had been slow. More significantly, the court was extremely disturbed by the threats made by the father to the child (directly to her and indirectly to the mother) during telephone conversations. These threats were of a piece with the text messages sent to the mother in which he had expressly declared his intention to track her down and ‘destroy’ her. It was revealing that even after those threats had been exposed in April 2021, the father had presented to the Polish assessors in May 2021 as gripped by the need for revenge. While conscious of shortcomings in the Polish report, the authors’ expert assessment of the father, based on direct interviews with him, remained of some evidential value. This evidence, taken as a whole, and seen in the context of the father’s own oral evidence, which had left the court questioning his emotional stability, left the court unable to repose any trust in the father to comply with restrictions placed on his behaviour. The court was therefore far from satisfied that the protective measures proposed by the father would be sufficient to protect the child effectively or adequately from the grave risk of psychological or physical harm were she to return to Poland with the mother, pending the engagement of the Polish court and/or further active steps taken by the police. It followed that, unusually, the court found the art 13(b) exception made out in this case (see [39]–[42], below).
(3) The court was further satisfied that the child genuinely, and authentically, objected to a return to Poland, and that she had attained an age and degree of maturity such that the court should take account of her views. Her objection was rooted in a genuine fear that she would be brought into close contact with the father either in an arranged or in an unsolicited way; she appeared genuinely to perceive...
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