Happy Christmas

Happy Christmas, Hugo.  I am posting this post to you on Christmas Eve as I did last year.  This will be your 4th consecutive Christmas in Japan.  It is at this time of the year more than any other that I think you miss out on not having any current connection with England as Christmas is still special here so it is very different to Japan in that regard.  All the shops and transport systems close and people spend time with their families eating food and opening presents.  I sent your Christmas card and presents (below) to Japan about 2 weeks before the final posting date so they ought to have reached you in good time.  I will be thinking about you in England; hope you have a nice Christmas Day and enjoy opening all your presents.

Christmas 2014 (1)

Your 2014 Christmas presents

Christmas 2014 (2)

Christmas 2014 (3)

Your 2014 Christmas card

Christmas 2014 (receipt)

Post Office shipment receipts

The Neustadt v. Neustadt case

The 1996 Hague Convention

The case of Neustadt v. Newstadt, judgment in which was handed down on 19 December 2014, concerned the 1996 Hague Convention; the earlier stages of the case generated a lot of publicity in the UK – you can read Daily Mail articles here (11 March 2014) and here (23 August 2014) and a BBC News article (20 November 2013) here.  The full title of the 1996 Hague Convention (the most commonly referred to one in the context of child abduction is the one drawn up in 1980) is the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.  The full text of it can be read here and a permanent link to it will be placed on the Materials page of this site.  It is a wide Convention and covers matters such as parental responsibility orders, contact, child protection, the taking of children into care and more miscellaneous subjects such as legal representation and protection of property; it is not specifically concerned with child abduction.  It was signed by Russia on 1 June 2013.  The first use of the Convention in the Russian context is believed to have been in the Neustadt case.

In cases between member states of the European Union, the 1996 Convention is of less significance because the Brussels II Revised Regulations, about which I have written recently, are designed to encompass all of the provisions within the 1996 Hague Convention, and more.

Russia is a not a signatory to the 1980 Hague Convention so bringing proceedings through that mechanism to secure the return of the children in this case was a non starter. The return was brought about by the England and Wales High Court (in earlier proceedings) ordering the return of the children and the Moscow City Court, by operation of the 1996 Hague Convention, recognising and enforcing that overseas order in a decision in September 2013, upheld on appeal in November 2013.  Without that recognition, the children would not have returned as the England and Wales High Court had no means to enforce its orders abroad.

Factual background

The factual background needs only be set out briefly. The Russian/German father abducted to Russia his two boys on Christmas Day 2012.  They were returned to the care of their UK-based American mother on 24 June 2014; the delay in this happening after the father exhausted the legal avenues in Russia was because he hid the children (described by the High Court as ‘an abduction within an abduction’) after the first court ruled against him and shortly before the second court also did so.

The children having been returned to the UK, the father sought contact with them. Before deciding on whether and, if so, where and how often such contact should take place, the High Court conducted a fact-finding hearing.  This was in part concerned with whether the father’s expressions of regret were genuine.  You can read more about the circumstances leading up to the abduction and the process by which the two boys were eventually returned in the judgment. All abductions of a child are unconscionable in nature but the Court recognised that the abducting father’s conduct in this case was particularly shocking: see the judgment at paragraphs 21, 24, 46, 52, 58, 72, 82-84, 90-91 and 93-96 in particular.

What the court said

The High Court summarised the evidence presented to it as follows:

110.  During his evidence, the father expressed regret for his actions, attributing them in part to incorrect advice from his Russian lawyers. He said that he had learned a very serious lesson and he offered an apology to the court and, for the first time, to the mother.

111.  I asked the mother for her reaction to the father’s actions and to his expression of apology. In a single uninterrupted answer, given without bitterness, she replied:

“I believe the abduction of the children was masterminded by Mr Neustadt in order to demonstrate power and ego, and to torment, punish and hurt me. It was about control and his perception of winning, and not about anything else, including about the children.

If we backtrack two years ago, we were at a pretty good place: divorcing, working through things, organising finances, sharing time with the children. I was interested in promoting a most fulfilling childhood for them. Mr Neustadt did not share these motives. Instead of a lovely family vacation, the children and I have had a horrible, traumatising experience and the children will be affected for the rest of their lives. Mr Neustadt tends to blame others rather than to take responsibility. He may be remorseful for the negative ramifications of his actions, not for the actions themselves. I believe he is not capable of putting the children’s interests above his own. I believe he is perhaps unstable. This has been a very unfortunate experience for everyone involved.”

The Court wholeheartedly rejected the father’s expressions of regret and the various excuses advanced for his conduct:

114.  These three children have been habitually resident in England and Wales since January 2011. After their parents’ separation, the arrangements for them to live with their mother and spend time with their father were carefully negotiated by the parents and approved by the court.

115.  The father’s removal of the children was an abduction, not a retention. I reject his evidence that he only decided to keep them after they arrived in Russia. When he took the children from London, he had no intention of returning them. He had planned it for months, lulling the mother into a false sense of security so that she would agree to the holiday he proposed.

116.  The father’s characterisation of Daniel Jakob and Jonathan as Russian children is a self-indulgent delusion. Of course they have a Russian parent, albeit he himself has lived most of his adult life elsewhere. But until December 2012, when they were aged 6½ and 4½, the boys had always lived in Switzerland and England. They had never even visited Russia. Their Russian heritage is important, but it has been played upon by the father because it is the one thing that he can offer that the mother cannot.

117.  Having successfully got hold of the children, the father set about strengthening his position by engaging in a series of cynical manoeuvres, delaying tactics and deceptions that he knew the mother would be powerless to oppose. He was only willing to accommodate her in the children’s lives if she came to live in Russia, where she would be under his control. When she would not agree, her access to the children was strictly limited, and then stopped altogether. In doing this, the father counted on his legal position in Russia being secure. I find that he intended to keep the children indefinitely, and was only frustrated by the determined actions of the Russian authorities.

118.  The father claims that his actions were influenced by Russian legal advice. I do not accept that he ever genuinely considered his position to be legitimate. He is a man who relies on advice that suits him and ignores advice that does not. He flouted every order of this court and when faced with orders of the Russian courts, he went underground. His excuse for this (danger from unidentified persons) is a bogus invention, but the children were not to know that. They were brainwashed into believing that they were being pursued by dangerous bandits, including their mother. The seriousness of this is not only measured by the length of the separation created by the father, but also by his willingness to root the mother out of the children’s lives. This was not just child abduction, it was child abuse.

119.  One of the father’s strategies has been to politicise the children’s situation for his own ends. He took to the Russian media in an attempt to whip up domestic political sentiment by means of deliberate lies, and he delayed the children’s return by obtaining a travel ban. He pursued his goal of keeping control of the children in every legal and illegal way he could devise.

120.  The children and their mother have been profoundly affected by these events. For a year and a half, their lives were turned upside down. The boys were separated from their mother and brother. They were forced to live a bizarre clandestine life, surrounded by lies and cut off from normal existence. It will take a long time for them to come to terms with these experiences.

121.  At this hearing, the father had the opportunity to show regret and insight. Unfortunately, by his written and oral evidence, his questioning of the mother, his submissions, and his decision not to attend the hearing in person, he showed that he has little appreciation of the impact of his actions on anyone else, including the children. The only person he seemed to be really sorry for was his mother. Throughout his evidence he was pedantic, unreliable and untruthful. When confronted methodically with the clearest evidence, his reaction was to misrepresent, prevaricate, minimise, extenuate and contest. There was no sign of any real remorse. So far, his apologies are no more than a means to an end, motivated by disadvantage and the failure of his grand plan. The mother’s perception of him, recorded above at paragraph 112, is in my view justified.

122.  Anyone meeting these parents without knowing the family history is liable to be misled – misled into underestimating past events by the mother’s extraordinary serenity and dignity, and misled into underestimating future risks by the father’s outward appearance of intelligence and courtesy. Given the sustained ruthlessness of his conduct, the risk of further alienation or abduction is high.

123.  The collusion by the father’s family increases those risks. The children’s uncle could have used his influence for good, but instead has chosen to support the father throughout. The grandmother’s conduct can only be described as unworthy of a grandparent.

It concluded with the words (emphasis added by me):

124.  The next stage of these proceedings concerns the children’s future welfare. However harmful their father’s behaviour has been, he is an important figure for them. Unfortunately, he set about teaching them that they do not need two parents. It will take them time to unlearn that lesson.

The actual decision about those matters will be made at a subsequent hearing, unless the parties can reach an agreement in the meantime. It is normal for the High Court to firstly make findings about facts that are in dispute in a case and then decide what needs to be decided (based on those findings) at a later date, if it is still necessary to do so.

Why the case is significant

The case is of interest for three reasons.

First, it involved the return to two abducted children from a country that was not a signatory to the 1980 Hague Convention. For those familiar with the situation in Japan, that is startling.  It is important to note that this would not have happened but for the willingness of the domestic court in Russia to recognise, through the 1996 Convention, the England and Wales High Court’s order that the children should be returned.  The case shows that attitudes on the part of local (country of abduction) judiciary are critical in abduction cases, whether covered by the 1980 Hague Convention or not.

Secondly, and as noted at the start, this was the first case involving Russia and the use of the 1996 Hague Convention as the legal basis for returning abducted children.

Thirdly, the case was fully reported i.e. the parents and children were named in the judgment. In most family cases, including cases involving abduction, parties and children are not named so as to protect the identity of the children; nor indeed is any information (e.g. dates of birth, names of schools etc.) that could give rise to the identification of the parties/children involved in the case placed in the public domain. As to the question of full publication, the Court stated as follows in a postscript (emphasis added by me):

127.  [T]here is a public interest in the true circumstances of this case being known, for these reasons:

(i) The parties’ accounts of events have already been widely published in England and in Russia. The true facts should be known, particularly where misinformation has been published by one party.

(ii) This is apparently the first case under the 1996 Hague Convention. It shows the importance of the Convention, the willingness and ability of the courts of the Russian Federation to apply it, and the results that can be achieved when lawyers work together across jurisdictions.

(iii) Knowledge of the outcome in this case may encourage the adult victims of other child abductions and deter potential child abductors, especially if the latter know that they might be publicly named.

Further Information:

Bring Back My Boys – website set up by/on behalf of the boys’ mother (although it has not been updated for some months)

The Brussels Regulations

This post was going to be a postscript to the previous one in which the Regulations that I write about below were first mentioned. The length of it, however, meant that it could not on any stretch of the imagination sensibly be described as ‘a postscript’.  So it is being posted on its own – the content is deserving of specific mention in any event.

Child abduction cases coming before courts in the UK are now partly concerned with the ‘Brussels II Revised’ Regulations as well as the Hague Convention itself. The official title of these Regulations is Council Regulation 2201/2003 and, for those who are interested, I am placing a permanent link to the Regulations on the Materials Page of this website. The Regulations are lengthy and are not solely concerned with cases of child abduction but with procedures to follow in family law cases more generally.   They came into being to deal with issues of enforcing family law related judgments in countries other than that in which they were made, and to determine which country such cases should be decided in when there is a choice in this regard, as there often will be when relationships involving nationals of more than one country break down.  The Regulations exist to, in their own words and in the context of the child abduction provisions, ‘complement’ the Hague Convention itself.

The preamble of the instrument states as follows in relation to abduction situations:

(17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained. (18) Where a court has decided not to return a child on the basis of Article 13 of the 1980 Hague Convention, it should inform the court having jurisdiction or central authority in the Member State where the child was habitually resident prior to the wrongful removal or retention. Unless the court in the latter Member State has been seised, this court or the central authority should notify the parties. This obligation should not prevent the central authority from also notifying the relevant public authorities in accordance with national law. (19) The hearing of the child plays an important role in the application of this Regulation, although this instrument is not intended to modify national procedures applicable.

The detailed provisions that relate to child abduction cases start at article 10 of the Regulations.  This reads as follows:

Article 10 Jurisdiction in cases of child abduction

In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:

(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or

(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:

(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;

(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);

(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);

(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.

What this means is that, in international parental child abduction cases, the courts of the country that the child was abducted from will deal with any legal proceedings provided that the child was habitually resident there at the time of the abduction – this is likely to be the case in most Hague Convention cases as, otherwise, the proceedings are unlikely to have been brought in the first place. The country will continue to deal with the proceedings until the child becomes habitually resident elsewhere and provided that certain additional conditions (points (a) or (b) above) are met.  The conditions are that everyone (parents/guardians, local authority etc) agrees to the transfer abroad of the proceedings or the child has resided in the country where it has suggested to transfer the proceedings to for at least one year after the fact of the child’s residence abroad became known to other people involved in the case and that at least one of the (further) conditions at points (i) to (iv) above are satisfied.

Article 11 of the Regulations then goes on to say as follows:

Article 11 Return of the child

1.  Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter “the 1980 Hague Convention”), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.

2.  When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.

3.  A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law. Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.

4.  A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.

5.  A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard.

6.  If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order.

7.  Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seised by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child. Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time limit.

8.  Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.

What this means is that, in Hague Convention cases, the child involved in the case must, subject to appropriate allowance for his or her age and maturity, have the opportunity to be heard in the proceedings.  Further, proceedings must be processed as quickly as possible – this means within 6 weeks unless exceptional circumstances mean that this is impossible.  A court cannot refuse to return a child under the Hague Convention’s article 13 (b) ‘serious harm’ defence if it is satisfied that adequate protection arrangements are in place.  Finally, if a requested return is not to be ordered the party requesting that return has to be given an opportunity to be heard.

Much of this is uncontroversial in the UK as there are separate procedures in place for giving vent to the wishes and feelings of children involved in family cases in any event and, in terms of abduction case, these tend to be dealt with quickly anyway – when they are delayed, that is often the result of onward appeals bring brought by the losing party. What is of interest is that the article 13 (b) defence can be repelled by evidence that there would be adequate protections in place for the child. This is an important guard against unfounded allegations of violence preventing the return of a child to its home.  Such allegations are often deployed in family cases, usually to cast one side or the other (or, increasingly, both) in a bad light.  Such allegations have a potential tactical advantage in terms of custody and contact issues (and, by extension, on financial settlements).  Such allegations are also made in abduction cases to cut off contact altogether with a left behind parent in cases where return is otherwise likely to be required but for the operation of the article 13 (b) defence.  The defence, as drafted, brings with it the potential for injustice in cases where allegations are made and wrongly believed by the courts.  The innovation in article 11 (4) of the Regulations is that in cases where a court (wrongly) finds that a child would be at risk of harm, the return can still take place if adequate protections are in place to prevent the feared harm.  The defence is not now therefore an absolute one and has a much reduced potential for injustice.

High Court recognises ‘disadvantage’ in pursuing family cases abroad

This UK case followed an unsuccessful set of Hague Convention proceedings and is an illustration of what else can happen to separate family law proceedings in that situation.

The High Court was concerned with a girl who was born on 28 December 2011. The father was British and the mother Polish.  The relationship between the parents, who never married, ended before the child was born.  Due to this and the fact that the birth was registered in the mother’s name only, the father did not have parental responsibility.   The father was concerned that the mother might remove the child from the UK.   His concerns turned out to be well-founded ones.  To guard against this possibility in April 2012 he applied for a Prohibited Steps Order.  The situation changed at the hearing in relation to this application held at the Bournemouth County Court.  The mother gave a sworn undertaking to the judge that she would return the child to the UK at the end of the visit to Poland scheduled for May-July 2012.  The judge drew up an order permitting the mother to temporarily remove the child on the basis of her undertaking; the father also, in the event, agreed as an undertaking had been given.

After arriving in Poland, the mother applied to a Polish court for a custody order and informed the Bournemouth County Court in the UK that she did not intend to return. The father’s response to this was to instigate Hague Convention and ‘Brussels II Revised’ Regulations proceedings in Poland following a referral by the Central Authority for England and Wales.  (The ‘Brussels II Revised’ Regulations will be the subject of the next post on this blog – for the moment the relevant passage is set out at the end of this post).  The application for the return of the child was refused by the Ruda Slaska District Court on 17 December 2012 and an appeal brought against that decision was turned down on 23 October 2013.  The reasons for this decision can be gleaned from an earlier (UK) High Court decision, the precursor to the one that this post relates to, which makes reference to the separate Hague Convention proceedings in Poland.  The reasons given for refusing return were twofold.  First, that the father did not have ‘rights of custody’ within the meaning of article 3 of the Hague Convention.  Secondly because, in any event, the return of the child would bring with it a risk of exposure to ‘…physical or psychological harm or otherwise place the child in an intolerable situation’, a defence provided for by article 13 (b) of the Hague Convention – there were allegations of violence made on both sides.  Either one of these points, if made out, would have been enough to put a stop to the return.

Whilst this was going on, the UK proceedings in the Bournemouth County Court had been put on hold: this was the case even though a decision, allowing the mother to remove the child, had been reached as, in such cases, there is always the potential (likelihood even) of further litigation.  Because, however, of the situation that he found himself in the father made an application committing the mother for contempt of court (for breaking the terms  both of the order itself and the undertaking that gave rise to it), for a parental responsibility order and for a contact order.  The matter was transferred from the Bournemouth County Court to the High Court in London for it to deal with.  The High Court concluded that it was open to it to deal with the parental responsibility and contact applications but not the contempt.  Reasons for this were given in the already referred to earlier judgment in the same case.  The contempt point did not fall to be addressed because it had not reached a stage at which it could be adjudicated on so it did not greatly feature as an issue in either of the judgments.

At the hearing in the High Court the judge, of his own volition, raised the point about whether the issues in the case would be better addressed by the Polish courts. The judge took the view that he had the power to do this under article 15 of the ‘Brussels II Revised’ Regulations; this is set out in full at the end of this post.  The father resisted this suggestion and the hearing was adjourned part way through to enable the father’s representative to better address the point.  When adjourning the case, the judge directed, amongst other things, that the mother attend on the next date and that the child be joined as a party to the proceedings.

When the matter came back before the High Court, the mother did not attend and the father, through his lawyers, continued to argue that the issues should be decided in the UK. One of the points made in support of this position was that, on any reckoning, the mother had wrongly removed the child from the UK as she did so contrary to an express undertaking given to the Bournemouth County Court.  This almost certainly amounted to perjury and, regardless of how the parental responsibility and contact issues were dealt with, any proceedings arising out of this contempt of court would necessarily have to be dealt with in the UK.  In other words it was argued, first, the mother should not benefit (further) from her wrongdoing – her behaviour was described as a blatant case of abduction – and, secondly, there would continue to be (some) proceedings in the UK in any event so there seemed little point in transferring part of the litigation to Poland.

At paragraph 15 of the judgment, the Court recorded this argument advanced on the father’s behalf:

[The father’s lawyer] further contrasted the respective abilities of the parties to participate in proceedings in the two countries. The mother was able actively and properly to engage in proceedings in this country. She has a good understanding of the English language, as is plain from her oral evidence before District Judge Dancey. She was able to give a promise on oath which the judge felt able to accept. In contrast, the father asserts that he has no knowledge of the Polish language and no understanding of the procedures of the Polish courts. He does not have the means to travel to Poland and stay there to participate in proceedings. Poland has a system of legal aid but, as demonstrated in he expert report from Dr Kasinska-Wiercinska, there are in practice a number of difficulties facing a litigant in the father’s position who wishes to apply for such assistance.

This state of affairs is, of course, common place in cases involving abduction and is a reason why left behind parents choose not to seek legal redress at all. It was a state of affairs that was not sufficient to prevent the transfer of the case to Poland.

The Court disagreed with the father’s position. It was swayed to decide as it did for the following five broad sets of reasons.

First, the allegations of domestic violence were particularly relevant to whether contact should be granted and a court would need to decide whether such allegations were true. It could not do this without evidence from the mother.  As all the indications were that the mother would not attend a hearing in the UK, such matters would have to be decided by the Polish courts.  Whilst the mother was probably unwilling to travel to the UK because of the threat being found in contempt of court and the allied risk of a criminal prosecution for perjury, owing to the earlier undertaking that she gave, she probably could be compelled to give evidence in Poland, even if she did not want to.  The Court, in deciding as it did, acknowledged that the father would find himself at a ‘considerable disadvantage’ in Polish proceedings.

Secondly, the Polish courts were better placed to adjudicate upon the issues at stake. The child was in Poland and had significant family ties there.  This would make it easier for the necessary investigations as regards the child’s welfare to be conducted.  Much of the evidence that related to the issues to be determined was ‘Polish-centric’ the Court concluded.

Thirdly, the possibility of the father actually bringing committal proceedings for the mother’s apparent contempt of court was not seen as a reason to prevent the issues of contact and parental responsibility being decided separately in Poland. Any contempt proceedings would be free standing and not dependent on decisions made in relation to contact and parental responsibility.

Next, deciding the issues in Poland was also the pragmatic approach. On this, the Court remarked at paragraph 28 of its judgment that:

…the court must adopt an essentially pragmatic approach. It seems to me plain that in this case the Polish court is manifestly better placed to hear the father’s application. Indeed, when a summary return under the Hague Child Abduction Convention has been refused, the courts of the country to which the child has been removed, or in which the child has been retained, will for pragmatic reasons almost invariably be the best forum to determine issues as to the future exercise of parental responsibility, notwithstanding the fact that the child is only in the country following an unlawful removal or retention.

Finally, the best interests of the child were not such that the issues needed to be decided in the UK. The Court addressed the wrongful removal point head-on and remarked as follows at paragraph 29 of the judgment:

I turn finally to the third question – whether a transfer of jurisdiction to the Polish courts is in E’s best interests. I agree with counsel that the fact that the child has been wrongfully retained in Poland is a relevant consideration when considering this question. This was a blatant breach of an undertaking given on oath and it can be argued that it is not in E’s best interests for such conduct to be “rewarded” by the transfer of proceedings to Poland. But, as [the lawyer representing the child’s interests] observes, in circumstances where the reality is that, whatever the views of the English court regarding the retention of the child in Poland, the child will not be returned, then the child’s welfare and best interests again require a pragmatic approach. E’s best interests require that the father’s application for a child arrangements order and parental responsibility order be heard and determined. As the mother is not going to participate in the English proceedings, the application cannot be determined here. I acknowledge that it will be difficult for the father to prosecute his application in Poland, but in my judgment it will not be impossible.

Although this was not a Hague Convention case as such but a case concerned with contact and parental responsibility, the case is of note because of the fact that fairly short shrift was made of the argument that the father would struggle to participate at any meaningful level in court proceedings in Poland. Such considerations, though obviously real, are not determinative in the assessment of the High Court.

Annex: Article 15 of the ‘Brussels II Revised’ Regulations (2003): 

Article 15

Transfer to a court better placed to hear the case

1.  By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:

(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4; or

(b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5.

2.  Paragraph 1 shall apply:

(a) upon application from a party; or

(b) of the court’s own motion; or

(c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3.

A transfer made of the court’s own motion or by application of a court of another Member State must be accepted by at least one of the parties.

3.  The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:

(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or

(b) is the former habitual residence of the child; or

(c) is the place of the child’s nationality; or

(d) is the habitual residence of a holder of parental responsibility; or

(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property.

4.  The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seised in accordance with paragraph 1.

If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

5.  The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

6.  The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53.