Re F (Children) (Abduction: Rights of Custody)
| Jurisdiction | England & Wales |
| Judge | Sir Mark Potter |
| Judgment Date | 22 February 2008 |
| Neutral Citation | [2008] EWHC 272 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD07P02519 |
| Date | 22 February 2008 |
[2008] EWHC 272 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Sir Mark Potter
President Of The Family Division And Head Of Family Justice
Case No: FD07P02519
Jeremy Rosenblatt (instructed by Zermansky & Partners) for the Plaintiff
Debbie Taylor (instructed by Williscroft & Co) for the Defendant
Hearing dates: 31 January 2008
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.
THE PRESIDENT
This judgment is being handed down in private on 22 February 2008 It consists of 22 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.
This is an application by the plaintiff father pursuant to the Child Abduction and Custody Act 1985 incorporating The Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) and Council Regulation (EC) No. 2201/2003 (“Brussels 2 Revised”). It concerns his two sons M born on 28 December 1994 who is now 13 years old and K born on 23 March 1996 who is now almost 12 years old (“the children”). The Defendant is the mother of the children who arrived with them in England in December 2006. She married the father in Poland in 1994, the marriage being dissolved in Poland on 26 April 2002. Post-separation the mother lived and worked in Gdansk as a dental surgeon. The father has since remarried and lives in Gdansk with his second wife and their young child. There have been previous proceedings in Poland relating to the children in which Court orders were made on 26 April 2002, (by the Regional Court in Gdansk), 1 February 2005, 15 December 2006 and 24 October 2007 (all by the District Court in Gdynia, Family Department). Copies of those orders are before me in translation.
Under the order of 26 April 2002, paragraph I pronounced the dissolution of the parties' marriage, paragraph II dealt with the question of “parental authority” and paragraph III dealt with detailed provisions as to contact. The father was granted contact every Tuesday and Thursday from 4pm – 6.30pm and every second Friday from 4pm to Sunday at 6.30pm, with provision also for holiday contact.
Paragraph II of the order provided that the mother should:
“Exercise parental authority over … [the childen] … with restricted authority for the father only to co-decide on their vital problems in connection with upbringing, education and medical treatment”
The order of 1 February 2005 was made upon an application by the father, following disputes and difficulties in relation to contact, in which he claimed “Deprivation of [the mother's] Parental Authority and Amendment to paragraph (II) in the order … dated 26 April 2002”. The decision is recorded as follows:
“(1) To limit the parental authority exercised by [the mother] and [the father] over [the children] … in the following manner:
—[the father] and [the mother] must both start family therapy run by a psychologist …
—Subject the parental authority by [the mother] to court family curator supervision, who is supposed to make monthly reports on the course of the events starting on 1 April 2005, which at the same time alters the meaning of paragraph II in the order … dated 26 April 2002 …
(II) … to maintain the effect of the restricted parental authority of [the father] to follow paragraph II in the order … dated 26 April 2002 …”
The order of 5 December 2006 recorded a decision of the Gdynia court to amend paragraph III of the order of 26 February 2002 (which date it is clear is a misprint for 26 April 2002):
“… to the extent that the presence of the Court Family Curator be present at the onset of the contacts described in paragraph III of the said Judgement”
I refer to the terms of the order of 24 October 2007 at paragraph 8 below.
On 6 December 2006 the mother brought the children to England without first informing the father. This is not in dispute. In her affidavit sworn by way of defence to these proceedings, the mother briefly sets out her position in Poland before she left which was one of dispute with the husband over finances and the amount and timings of contact visits which she wished to reduce and which the children were reluctant to fulfil. She recognises that the Court Family Curator (referred to in the second and third court orders) was then active in trying to ensure that contact took place, but states the last time contact had actually taken place was about July 2006. The mother makes clear that she was in financial difficulties because, although a qualified dentist, she was unable to get a contract with the government health service and the father was in substantial arrears of maintenance. (The father asserts that he was paying maintenance, but it is clear from court documents that there were substantial arrears). The mother was bearing the burden of supporting the family. She had visited England in September 2006 to explore the possibilities of coming and practising as a dentist over here, discussed the plans with her children and brought them to England with their agreement. She does not suggest that she discussed her plans with the husband. She visited England in November 2006 to arrange places at schools in England for the boys and makes clear that:
“In all this period of time I was not in touch with the court and had not spoken to the curator.”
She states however (as her solicitor confirms) that she informed her Polish solicitor that she was planning to move to England and was advised that she could do so lawfully because she had the care of the children under the court order and could decide where they lived. Indeed, as her solicitor has acknowledged in a letter before me, she personally encouraged the mother to take a job abroad. The mother instructed her solicitor to write to the court and explain that she was living in England and to give her address in Lancashire. The solicitor wrote to the Court in the form of an application to the court dated 20 December 2006 headed “Motion for Contacts to be Suspended”, applying “for suspension of contacts of [the children] with their father …” Under the heading “Justification” the application states that on 6 December 2005 [it is not in dispute between the parties that this must be a misprint for 2006] the mother went to work in Great Britain and that she went there with her children “due to economic reasons”. Having set out the mother's economic difficulties and the outstanding maintenance, the application stated:
“On her return to the home country she will notify the father of [the children] to re-establish their contacts.”
It would thus have appeared to the court that the move to England was of a temporary nature.
The application of 20 December 2006 did not state the wife's address in England, a fact of which the mother accepts she became aware, having seen a copy of the application once made. She did not herself notify her new address in England to the father. Nonetheless, she relies upon statements of the children that they had informed the father of their intended move to England and that he appeared to accept it. The father does not state when he first knew of the move to England. He simply states that he first made telephone contact in September 2007. Nor does he say when he first knew the mother's address. The mother asserts (and I accept) that the father could readily have found her address on the internet and/or by consulting the General Dentist Council website which contained her name and home address as recorded in its register and has been the same throughout her time in England.
At some date prior to 24 October 2007 the Gdynia Court inquired of the mother's solicitor when the mother and children's return to Poland could be expected. The solicitor informed the Court that she was unable to say. Thus, on 24 October 2007 the Gdynia court made the last of the orders to which I have earlier referred, namely a decision to “suspend executory proceedings” in respect of item II of the original court order of 26 April 2002. It records that the mother's attorney by a procedural writ of 23 October 2007:
“Confirmed prior information resulting from the probation officer's i.e. the Court Family Curator's inquiry that [the mother] – on the day of 6 December 2006 – went, with her children, to Great Britain for employment purposes and the date of her return to Poland is not known. Under such circumstances, as [the mother] is absent from this country, execution of the probation officer's supervision is hindered. Therefore the suspension of executory proceedings is currently necessary.”
The father by his affidavit, disputes the mother's assertion that the difficulties over contact in Poland arose from his default or unreasonable attitude. He blames her for those difficulties, and asserts that in truth they arose because of the mother's obstructive attitude and deliberate creation of prejudice in the minds of the children against him. In this respect he is supported by an opinion of two psychologists in Poland reporting under an order of the court of Gdynia on 31 May 2006 (which order is not before me) in relation to the difficulties over contact which had developed when the boys were 11 and 10 respectively. The conclusions, which were supportive of further contact with the father as...
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