WX v YZ
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Gwynneth Knowles |
| Judgment Date | 29 June 2020 |
| Neutral Citation | [2020] EWHC 1782 (Fam) |
| Date | 29 June 2020 |
| Docket Number | * |
| Court | Family Division |
[2020] EWHC 1782 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Gwynneth Knowles
*
and
Mr Aidan Vine QC and Mr Edward Bennett (instructed by Dawson Cornwell) for the Applicant
Mr James Turner QC and Miss Katy Chokowry (instructed by Bindmans LLP) for the First Respondent
Mr Henry Setright QC and Miss Charlotte Baker (instructed by Goodman Ray) for the Second Respondent
Hearing dates: 22–24 and 29 June 2020
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.
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.
The Applicant [“the mother”] and the First Respondent [“the father”] are the separated parents of the Second Respondent [“K”], aged 13 years. This is the final hearing of the mother's application for K's summary return to Poland pursuant to the 1980 Hague Convention on the Civil Aspects of Child Abduction or, alternatively, pursuant to the inherent jurisdiction. The mother's application was issued on 29 January 2020, just over four years after the father wrongfully removed K from her mother's care in Poland, where she was habitually resident, using an Algerian passport for her which he had acquired covertly.
It is a sad fact of K's life that she has been litigated over by her parents since 2013. She has been the subject of first instance and appellate judgments in Poland; the subject of two English High Court judgments, that of Roberts J in 2015 and that of Hayden J in 2016; and she has also been the subject of judgments by the Algerian courts. This case is a perfect example of the damage done to and experienced by children in international abduction cases, a fact often overlooked by many involved in this work.
This judgment is somewhat shorter than it might have been, because of developments during the hearing. In summary, the mother conceded that, in the light of K's objections to a return to Poland, her applications could not succeed. She invited me to give her permission to withdraw those applications and this judgment explains why I now do so. It will be apparent from the contents of this judgment that she is to be commended for the painful and difficult decision she made about this litigation. Her decision was solely attributable to the love she has for K and to a sincere respect for K's wishes to now remain living in England.
This judgment also serves another and equally important purpose, namely, to provide a considered account of what has happened to K whilst in the care of her parents. It will be the foundation for the legal proceedings about K's contact with her mother which will be initiated once the Hague Convention proceedings have concluded. K will be able to read it to understand, as a young person, what might have been less evident to her when she was much younger. I hope that she finds it helpful.
Hague Convention proceedings are summary proceedings in which, because it is anticipated that another court will be seised of proceedings concerning a child's welfare, the court is discouraged from making findings of fact. I have had this firmly in mind when setting out past events but, where it seemed to me permissible and necessary to do so, I have come to some limited factual conclusions.
I have read a significant bundle of documents and considered a number of case authorities to which I was directed in argument. I am very grateful to the advocates who appeared before me: their written and oral submissions were founded not only on a deep understanding of the Hague Convention and its attendant case law but also on a real sympathy for the human beings embroiled in this uniquely difficult case.
Background
What follows is an account of the pertinent background, with comment and observations where necessary.
The father was born in Algeria and came to live in England in September 1983, where he pursued his education and obtained postgraduate degrees from Reading University. He has been based in the Reading area throughout the time that he has spent in England since he commenced his tertiary education. He obtained British nationality in about 1997, since when he has had dual Algerian and British nationality. His career has been that of an academic and a writer. He is a moderate but sincere follower of the Islamic faith. The mother was born in Poland and has Polish nationality. She too has a university education.
K's parents met in 2004 when the father was visiting Poland in connection with his career. During 2006 a relationship between them developed and, later that year, they went through an Islamic ceremony of marriage in Poland. K was born in Poland in 2007 and has British and Algerian nationality. In about August 2008 K and her parents relocated to Reading in the United Kingdom, where they lived as a family. Both parents had paid employment and shared in the care of K. In September 2011 K started primary school in England. From time to time, she had holidays in Algeria with both her mother and father separately and holidays in Poland with her mother.
In September 2012, the father travelled to Oman to take up a teaching post and it appears that the mother and K were meant to join him there in December 2012. However, the mother and father quarrelled, and the mother admitted that she was having an affair with another man in Poland. On 17 November 2012, the father returned to England to find the mother and K had gone to Poland. It appears that the mother told K that they were going on a trip to London, thereby concealing from her that she would be leaving her father, her school and her friends to relocate abroad. K's statement to the court made clear her sense of shock at both arriving in Poland, a place she described as “… a completely new world for me. It was sudden and strange…”, and at her mother being untruthful with her about where they were going. It is beyond dispute that K's mother had removed her wrongfully from this jurisdiction, where K was habitually resident, and that this removal was in breach of the father's rights of custody.
The father tried unsuccessfully to persuade the mother to return K to England. In 2013, he began Hague Convention proceedings by which he sought K's return from Poland to England. On 4 September 2013, the District Court in Plock found that there had been a breach of his custody rights and granted the father's application. The mother appealed and on 16 January 2014 the Regional Court in Plock upheld the appeal, finding that the mother had established a defence to the breach of the father's custody rights under Article 13(b) of the Convention. Having had the benefit of a psychological assessment of K and the mother having indicated that she was not prepared to return to England herself, the Polish appeal court held that “ depriving the child of her mother's care will cause the child great emotional harm, which will affect her entire life”. On 18 June 2014, the Polish Court made an order that K should live with her mother.
On 30 July 2014, the father applied to the English court for K's return to England, in accordance with Articles 11(6)-(8) of Brussels IIA. The father instructed solicitors during those proceedings, but he appeared in person at the final hearing. In connection with the father's application, a Cafcass officer, Mr Power, travelled to Poland to assess K's circumstances and make recommendations. Notwithstanding the mother's behaviour in abducting K in the first place, Mr Power acknowledged that matters had moved on and concluded that K's welfare needs were best served by remaining in Poland with her mother, the country she had (by that point) lived in for about two years. K appeared to have settled well in Poland and was subsequently described by Roberts J in March 2015 as having been completely absorbed into her local home, school and community in Poland. As is clear from her statement to the court, K does not have a wholly positive view of her life in Poland. She accepts that she probably appeared happy and was close to her mother in the same way that she now is close to her father, but it was not until she lived in Algeria that she realised how unhappy she had been in Poland. She has memories of being bullied at school in Poland and she did not feel as if she fitted in. Those unhappy experiences do not appear to have been something of which her mother or K's school were aware though I note that the mother removed K from her previous school in Poland because of alleged bullying.
On 12 March 2015 Roberts J refused the father's application. She found that K was habitually resident in Poland, and ordered that she should continue to live with her mother until further order of the Polish court. Further, Roberts J made a prohibited steps order preventing the father from (i) removing K from Poland, and (ii) removing her from the care and custody of the mother, save for agreed contact. The father attempted to appeal that decision but was unsuccessful in doing so.
Shortly after her abduction to Poland, K began having indirect contact with her father via telephone and Skype. This took place almost every day until about March 2015 when, according to the father, the frequency of contact decreased to about...
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