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.

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One thought on “High Court recognises ‘disadvantage’ in pursuing family cases abroad

  1. Pingback: The Brussels Regulations | hugojapan

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