Re M (BIIa Article 19: Court First Seised)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Moylan,Lord Justice Hamblen |
| Judgment Date | 12 July 2018 |
| Neutral Citation | [2018] EWCA Civ 1637 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 July 2018 |
| Docket Number | Case No: B4/2018/0387 |
[2018] EWCA Civ 1637
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT
MR JUSTICE MOSTYN
SD16P00646
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hamblen
Lord Justice Moylan
and
Lord Justice Peter Jackson
Case No: B4/2018/0387
Kristina Hopper (instructed by Goodlaw Solicitors) for the Appellant mother
Timothy Scott QC (by Direct Access) for the Respondent father
Hearing date: 21 June 2018
The ultimate issue on this appeal is whether the Family Court was right to assert its jurisdiction over two children, now aged 6 and 4, and, having done so, to order their mother to return them to this country from Poland. The appeal is formally brought against a decision refusing to set aside such an order, which in turn requires consideration of the validity of the order itself.
The background
These children's parents are professional people, the mother being Polish and the father Hungarian. They met at a conference in 2010 and in 2012 the elder child was born. Later that year they married and the mother and child moved to England to join the father, who was working here. The mother herself also worked. In 2013, the younger child was born. Until May 2016, the family was based in England, although the mother returned to Poland with the children for significant periods due to difficulties in the marriage.
The mother then took matters into her own hands. On 19 May 2016, she travelled to Poland with the children for a 10-day holiday, but she did not return on the due date and instead told the father that she would not be returning and wanted a divorce.
The mother returned to England without the children to attend mediation with the father. On 12 June 2016, she and the father travelled to Poland. On 20 June, the father took the children to Hungary without the mother's knowledge. On 29 June, he returned to England with them. The mother then came back to England on 6 July, and on 30 July she again unilaterally took the children to Poland. The children have remained there since then, and they have only seen their father sporadically in the two years that have since passed.
The litigation
These events led to protracted litigation in both jurisdictions, with the mother seeking to establish jurisdiction in Poland and the father jurisdiction in England.
On 2 June 2016, the mother, acting in person, issued an application for custody in the Lodz District Court. On 14 July 2016, that application, which was never served on the father, was dismissed on paper by Judge Rzeznik on the basis that the children were habitually resident in England and that the Polish court therefore lacked jurisdiction. By then the children were, of course, back in England with the father.
On 30 June 2016, the mother submitted a child abduction application to the Polish central authority under the Hague Convention 1980. At that time she believed that the children were in Hungary. The application was withdrawn on 1 August, the mother having retrieved the children in the meantime.
The first application in this jurisdiction was made by the father on 4 July 2016. He applied under the Children Act 1989 to the Family Court at Brighton for a child arrangements order and a prohibited steps order to prevent the children's removal from England. An order in these terms was made that day at a hearing of which the mother had no notice. (It is not clear why she was not given at least short notice, as should have happened, but nothing now turns on that.) The order was expressed to last until a further hearing on 18 July 2016. The application and order were immediately notified to the mother and were later personally served on her.
When the matter came back before the court on 18 July, the parents were both represented. The mother raised the issue of jurisdiction but did not inform the court that her application to the court at Lodz had been dismissed on 14 July (she says she was unaware until later). The judge therefore stayed the English proceedings pending confirmation from the Polish court that there were applications predating the application to the English court and, if such confirmation were received, invited the Polish court to determine the issues of jurisdiction and habitual residence. In the meantime, the court put in place holding arrangements for the children's care and ordered that neither parent was to remove them from England and Wales, except that they were permitted to travel with one or both parents to Poland for any court hearing. It was in purported reliance on this proviso that the mother removed the children to Poland on 30 July without the father's knowledge.
On 13 July 2016, the mother had issued an application for divorce in Poland. On 14 September 2017, the Polish court rejected the father's application for it to be dismissed.
On 1 August 2016, the mother, by now legally represented, requested the Court at Lodz to reverse its decision of 14 July and to assume jurisdiction. Applying under the same case number as before, she submitted further evidence, including information about the stance of the English court on 18 July. It is clear from the resulting order that this request was made under Article 395(2) of the Polish Civil Code. Again, no notice was given to the father. On 5 August, the matter came before Judge Rzeznik, who set aside her earlier order, accepted jurisdiction, and established the children's residence with their mother until a final decision could be made. At that point the children were of course back in Poland. On 16 August, the father lodged an appeal against this decision.
Coincidentally, on 5 August 2016 the matter had been before the court at Brighton on the application of the father for enforcement of the prohibited steps order. The court considered that the mother had been entitled to take the children to Poland for the purposes of attending court there and that accordingly she would not be in breach of the order provided that she returned the children to England by 10 August at the latest. It lifted the stay on the English proceedings and directed that the matter return on 12 August.
Also on 5 August, but after the conclusion of the English hearing that day, the Lodz District Court responded to the request for information made to it by the English court. In an email to the court at Brighton, it advised that the mother's application regarding the children had been submitted to the court at Lodz on 2 June. Although not explicitly stated, one inference is that those proceedings were continuing since that date; in a later ruling on 7 December 2016 (see below), Judge Rzeznik appeared to confirm the existence of a pending Polish jurisdiction from 2 June onwards.
On 12 August 2016, the matter came before Keehan J. The father's appeal in Poland against the order of 5 August was due to be heard on 1 September, and the English proceedings were therefore adjourned to 16 September, when they were adjourned generally with liberty to restore, the father wishing to prioritise Hague Convention 1980 proceedings in Poland for the return of the children.
The father's child abduction application was issued on 4 October 2016. It was heard by Judge Rzeznik on 5 December 2016 and dismissed on 7 December on the grounds that the children were not habitually resident in this jurisdiction when they were removed to Poland by the mother, and on the basis of grave risk of harm (Article 13b). On 28 March 2017, the father appealed from that decision. This appeal, together with his appeal from the 5 August 2016 decision in relation to jurisdiction. were dismissed by three judges of the District Court in Lodz on 13 June 2017, who found that in respect of jurisdiction the Polish proceedings “started on 2 June 2016”, that the judge's decision on habitual residence had been correct and that the December decision in regard to the child abduction application had also been correct.
On 20 October 2016, the father issued an English divorce petition; on 6 March 2017 this was stayed until the conclusion of the mother's Polish divorce proceedings.
There have been other applications, including by the father in Poland for contact. On 9 May 2017, an order was made for him to see the children, but only in Poland and in the presence of the mother. Both parties have appealed this order: the father on the ground of the restrictions imposed; the mother on the ground that no contact should have been awarded. On 14 September 2017, the Regional Court at Lodz directed the father to lodge the children's Hungarian passports before contact took place; on 15 May 2018, the Court of Appeal dismissed the father's appeal from this order. There have also been proceedings in Poland by which the father was ordered to pay child maintenance, and enforcement proceedings in this jurisdiction as a result of his failure to do so. The father has also applied to the European Court of Human Rights, alleging violations by the Polish courts.
We now come to the sequence of events giving rise to this appeal. In March 2017, the father applied to lift the stay on his Children Act proceedings and sought declarations establishing an English jurisdiction over the children and an order for their return. Detailed directions were given by Hayden J on 12 June 2017. The mother did not attend that hearing, but had written several times to the court. She asserted that the Polish court had exclusive jurisdiction and asked for the English proceedings to be suspended. If this did not happen, she requested that her evidence be heard by video link “by way of judicial assistance by the Polish court”. Hayden J set the father's application down for a 2-day hearing on 31 October 2017. Both parents were required to attend that hearing but there was...
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