(Family Division, Baker J, 31 July 2014)
[The judicially approved judgment and accompanying headnote has now published in Family Law Reports  2 FLR 1019
Abduction – Art 15,
BIIR – Child retained in
– Hague Convention return order refused – Mother refused to participate in
English proceedings – Whether the requirements of Art 15 had been satisfied
The full judgment is available below
The court determined
that proceedings in relation to the child should be transferred to the Polish
court pursuant to Art 15, BIIR.
between the English father and Polish mother ended before the child was born.
The mother was granted permission to take the child to
holiday on the basis of an undertaking that she would return the child.
However, upon the mother’s arrival in
Poland she applied for a custody
order and notified the English court that she did not intend to return.
The father applied for
a return order pursuant to
Convention and BIIR. In
the application under
Convention was dismissed as was his appeal. Instead the father applied to the
English court seeking an order committing the mother for contempt of court, an
order for parental responsibility and a contact order. The proceedings were
transferred to the High Court where the preliminary issue of jurisdiction
It was held that the
English court had jurisdiction to hear the father’s application but the
question arose of whether the court should exercise its power under Art 15 of
BIIR to transfer the case to
It was accepted by all parties that the first question of whether the child had
a particular connection with that country was satisfied as he was a Polish
citizen, his mother was Polish and he had lived there for the past 2 ½ years.
The application was allowed. The court had to adopt a
pragmatic approach. In this instance, the Polish court was manifestly better
placed to hear the father’s application. In deciding whether a transfer the
jurisdiction to the Polish courts was in the child’s best interests it was a
relevant consideration that the child had been wrongfully retained there. In
circumstances where the reality was that whatever the views of the English
court regarding the retention of the child in
Poland, the child would not be
returned, then the child’s best interest required a pragmatic approach. As the
mother would not participate in the English proceedings they had to be
transferred to the Polish court. All three questions arising under Art 15 had
to be answered in the affirmative.
Neutral Citation Number:  EWHC 2731 (Fam)
Case No: BH12P00148
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE MR JUSTICE BAKER :
Introduction and background
THE HONOURABLE MR JUSTICE BAKER
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF COUNCIL REGULATION (EC) 2201/2009
AND IN THE MATTER OF ED (A CHILD)
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Edward Devereux (instructed by Brethertons LLP) for the Applicant father
The Respondent mother was not present nor represented
Hearing dates: 16th July 2014
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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 no person other than the advocates or the solicitors instructing them and other persons named in this version of the judgment may be identified by name or location and that in particular the anonymity of the child and members of her 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 issue arising in this judgment is whether the court has jurisdiction to make orders concerning parental responsibility in a respect of a child, E, born 28th December 2011 and therefore now aged 2 years 7 months.
E’s father is English and was born in 1981. Her mother is Polish and was born in 1985. The parties were in a relationship for a short period during which time the mother became pregnant but, before E was born, the relationship broke down. There were allegations of domestic violence and, shortly before E’s birth, the father was made the subject of a restraining order by the magistrates. He asserts that it was the mother, rather than he, who was responsible for instigating arguments and was violent towards him.
After E’s birth, the mother registered the baby in her name only. As a result, the father does not have parental responsibility for the child. Thereafter, his contact with E was infrequent. On 16th April 2012, he filed an application in the county court seeking a parental responsibility order and a prohibited steps order preventing the mother from removing E from the jurisdiction. In his notice of application, the father stated that the mother had indicated that she might return to Poland with the baby. On the same day, without giving notice to the mother, the father appeared in person before District Judge Mildred who made an order forbidding the mother from removing E from the jurisdiction until further order and adjourned the matter for further consideration on 27th April.
At the adjourned hearing on that date, the father again appeared in person. The mother was represented by her solicitor and applied for permission to take E to Poland for a holiday. The father was directed to file a statement in response to this application and the matter was listed for a further hearing on 3rd May. On 30th April, however, the father sent an email to the court in the following terms:
“I am writing to stop all legal proceedings, after a good long hard think about this I realised how this is affecting me and the stress it is causing me, I know this will be affecting my old partner in the same way which will affect my new born daughter and I do not want this to happen, I am concerned [the mother] will not return to this country but if this is to happen I can at least say I have tried to make things better between us by dropping this court case and hope she realises I am not trying to get back at her I am just worried about seeing my daughter again, I would love to be able to start seeing my daughter she means the world to me but I will have to wait for [the mother] to return to the UK if she does, I have another daughter who is 4 years old who I have full contact with and she keeps asking me to see her baby sister, which was another reason for me stopping this court hearing as I want to one day for them both to meet and if I carry on with this hearing then I feel I will push [the mother] further away and make things even harder to see my new born baby.”
It seems, however, that by the time of the hearing on 3rd May, the father had decided against dropping the proceedings as he had indicated he would do in the email of 30th April. The hearing duly went ahead before District Judge Dancey. The father again appeared in person and the mother was represented by her solicitor. At the hearing, the mother gave oral evidence to the effect that, if she were permitted to take the child to Poland for a visit between 14th May 2012 and 16th July 2012, she would return E to this jurisdiction at the conclusion of the visit. On the basis of that evidence, the father withdrew his objections to the temporary removal of E to Poland.
At the conclusion of the hearing on 3rd May, the district judge made an order which included
(1) a formal undertaking to return E to the jurisdiction;
(2) a recital that the mother had given short evidence on oath that she would return E to the jurisdiction;
(3) a declaration that E’s habitual residence was in the United Kingdom and that the court was seised of the father’s application for contact;
(4) a recital that the father withdrew his objection to the temporary removal of E for the purpose of a visit to Poland between 14th May and 16th July 2012;
(5) the discharge of the prohibited steps order made on 16th April;
(6) an order prohibiting the mother from applying whilst she was away from the jurisdiction for a passport for herself or for E;
(7) further directions in the proceedings; including
(8) a direction listing the matter for further directions on 3rd August 2012 and for final hearing on the first available date after 13th August 2012.”
I note that the formal undertaking containing the mother’s promise to return E to the jurisdiction on 16th July stipulated that she would be bound by this promise until E was returned to the jurisdiction.
On 7th May, the father sent a further email to the court in the following terms:
“I am writing this letter with regard to my hearing on the 3rd August, I do not wish this hearing to continue for access to my daughter, E as I can not handle the stress and I know what I am going through so this will be affecting [the mother] and her emotions will be passed on to my baby girl, after seeing [the mother] for the second time at our hearing and seeing her break down in tears I can not do this to either of them as my main concern is my daughter’s upbringing and if [the mother] is upset like this it will affect our baby. I am starting a new job…and need a clear head to focus on the job so I am able to support my daughters, if I am unable to focus on the job at hand I will miss the chance to secure this job and my daughters need me to be able to provide for them, I am going to pray to God that [the mother] sees the light and is guided in the right direction and lets me see my daughter if this takes some time and she does not I will pay again to put in for access. I feel if I carry on this route it will surely make things worse between me and [the mother] and I do not wish this as one day I want to be at least friends for the sake of our daughter, I do miss my daughter so much and I am devastated I have missed the birth of my daughter and going to miss her christening I will be praying I do not miss my daughter’s first birthday and Christmas, I know how much it affected me not having both my parents in my life and I do not wish this on my daughter if things are not dealt with out of court I will file for access in September 2012 in time to get access to my daughter. This is my final decision with regards to the hearing on the 3rd August.”
One important question at the hearing before me was whether this email was intended as an application to withdraw the whole proceedings or merely to vacate the hearing on 3rd August. On his behalf Mr Devereux submitted that this was simply a request that the hearing on 3rd August should not go ahead. Mr Devereux submitted that this email, and its predecessor sent on 30th April quoted above, are indicative of the father’s inner turmoil and uncertainty as to the best way to proceed. The father had seen how the proceedings were affecting the mother and was concerned that her feelings would be transmitted to E. He was determined, however, that he should not be excluded from E’s life.
The father says that on 8th May, the day after sending the second email, he telephoned the court office and indicated that he had changed his mind and did not want the hearing on 3rd August to be vacated. So far as I can see, however, there is no record of such a phone call on the court file.
On 14th May, the mother flew to Poland with E.
The email of 7th May was put before District Judge Dancey who made an order on 18th May in which, having recited that he had considered the papers and in particular the email dated 7th May “seeking to withdraw the proceedings”, he ordered that “permission is given for the applicant father’s application for prohibited steps and parental responsibility orders to be withdrawn”. He further discharged the various directions made in the order of 3rd May and vacated the hearing on 3rd August. The order concluded by recording: “this is a final order”. The district judge did not, however, discharge the paragraph of the order prohibiting the mother from applying for a passport for herself or E while she was away, nor did he discharge the mother’s undertaking to return E to this jurisdiction.
On 28th May, the father sent a further email to the court in the following terms:
“I had a letter arrive on Monday 28th May and it says my court case has been closed, I am very annoyed at this because it says the reason is for the letter I sent in at the beginning of May, the day after I wrote that letter I phoned the courts and said I did not want this letter to go before the judge as I was not thinking when I wrote this, the woman agreed she would not send this before the judge unless I asked, I did NOT ask for it to be put forward and it has been put before him, so can this please be fixed as I want the court case to carry on the 3rd August, that is the only way I will be able to see my daughter and this is what I want, so please put the court date back as it was set for 3rd August. Thank you.”
The court file contains an internal memo in which a member of the court staff referred the father’s email on 28th May to District Judge Dancey who endorsed the memo as follow:
“1) Please check to see whether [the father] did phone to countermand his email.
2) Re-list for directions urgently to consider setting aside the order of 18th May 2012 time estimate 20 mins.”
Mr Devereux relies on the terms of this endorsement as indicating that District Judge Dancey interpreted the father’s email of 28th May as an application to set aside the order of 18th May, as opposed to a fresh application.
On 29th May, an application was made by an attorney acting for the mother to a court in Poland seeking orders in respect of E, including the equivalent of a residence order. In her application, the mother asserted inter alia that her undertaking to return E to this jurisdiction had been induced by fear. She further asserted that, when she removed E to Poland on 14th May, she had the intention of staying in that country permanently.
On 26th June, a notice of hearing was sent out listing the application to set aside for hearing on 6th July. On 3rd July, however, the father sent a further email to the court requesting that this hearing be adjourned because the mother was not due back from Poland until 16th July. The hard copy of this email on the court file has been endorsed by District Judge Dancey with the following comment:
“Please relist this case – neither party available today. List after 16th May allowing 20 minutes. I am not asking CAFCASS to complete safeguarding at this stage as I want to see whether [the father] is in fact going to pursue this application.”
The hearing on 6th July was duly adjourned to 10th August.
On 16th July, the county court received a letter from the mother in the following terms:
“I would like to apply for cancellation of any legal proceedings in relation with my daughter E…Since 14th May 2012 I have changed my country of residency me and my daughter are currently staying in Poland with my parents and intend to stay in Poland permanently. I am now looking for work and I will not be returning to England. For this reason me and my daughter are under [Polish] jurisdiction.”
Upon receipt of this letter, District Judge Dancey directed that a copy be sent to the father with the advice that he should seek legal advice as a matter of urgency. On 24th July, the father filed an application with the Central Authority for England and Wales for the return of E from Poland under the Hague Child Abduction Convention 1980 and Council Regulation (EC) 2201/2003, hereafter referred to as Brussels II Revised. On 10th August, the father’s application in the county court was adjourned generally with liberty to restore.
The history of the proceedings in Poland can be summarised briefly. On 27th September 2012, the father’s application for the summary return of E was started in the Polish courts and heard on 17th December. The father did not attend although it appears that he was represented. The mother attended and was represented. The father’s application was dismissed (1) on the basis that he did not have “rights of custody” for the purposes of Article 3 of the Hague Convention and in the alternative (2) pursuant to Article 13(b) of the Convention. On 15th February 2013, the Polish Central Authority sent documents to the England and Wales Central Authority pursuant to Article 11(6) of Brussels II Revised. Subsequently, the father filed a notice of appeal against the decision to dismiss his application under the Hague Convention. On 24th October 2013, that appeal was dismissed. The Polish Central Authority informed the England and Wales Central Authority of this decision by email dated 5th November.
Thereafter, the father sought legal aid to obtain advice as to options available to him. Eventually, on 30th April 2014, an application was filed on his behalf within the existing English proceedings seeking an order for the mother’s committal for contempt of court for breach of her undertaking given on 3rd May 2012 to return E to the jurisdiction and further seeking to restore his application for orders under the Children Act, including contact and parental responsibility. That application was transferred to the High Court and listed before me to determine, as a preliminary issue, whether this court retained jurisdiction to entertain the application. After a preliminary directions hearing, the matter was listed for legal argument before me on 16th July 2014. The hearing was attended by counsel for the father. The mother was neither present nor represented.
On behalf of the father, Mr Edward Devereux submitted that this court has ongoing jurisdiction to make orders in respect of E under the Children Act for the following reasons.
Mr. Devereux’s principal submission is that the proceedings launched by the father on 16th April 2012 were ongoing at the date of E’s removal from the jurisdiction. Although the father sent an email to the court on 7th May which was interpreted by the court as an application to withdraw his application, Mr Devereux relies on the father’s assertion in his email dated 28th May that he had telephoned the court on 8th May to rescind his application to withdraw made by email the previous day. It is plain from his endorsement on the internal memo that District Judge Dancey regarded the email of 28th May as an application to set aside the order of 7th May. Mr Devereux therefore submits that the proceedings initiated by the application of 16th April are extant. As a result, this court has jurisdiction because those proceedings were started before any proceedings in Poland at a time when E was habitually resident in this country. As a result, this court has jurisdiction under Article 8 of Brussels II Revised, which provides that the courts of a member state of the European Union have jurisdiction in matters of parental responsibility over a child who was habitually resident in that member state at the time the court was seised.
In the alternative, if the court were to conclude that the proper interpretation of the history of emails and orders as set out above is that the proceedings came to an end as a result of the father’s email of 7th May, Mr Devereux submits that this court nonetheless has jurisdiction in respect of E for one of two alternative reasons.
First, Mr Devereux submits that, applying the legal principles concerning habitual residence as clarified by the European Court of Justice in Mercredi v Chaffe (Case C-497/10)  FLR 1293 and the Supreme Court in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening)  UKSC 60,  1 AC 1, E had not lost her habitual residence in this country, or alternatively had not acquired a habitual residence in Poland, between her departure from this country on 14th May, and the father’s email to the county court on 28th May fourteen days later in which he sought to revive (or alternatively reapply) for orders in respect of E. Mr Devereux relies in particular upon the summary of the law concerning habitual residence set out by Baroness Hale of Richmond at paragraph 54 of the decision in A v A and in particular the following observations.
(a) Habitual residence is a question of fact and not a legal concept such as domicile.
(b) The test to be applied is that identified by the European Court, namely ‘the place which reflects some degree of integration by the child in a social and family environment’ in the country concerned.
(c) This depends upon numerous factors, including the reasons for the family’s stay in the country in question.
(d) The social and family environment of an infant or young child is shared with those (whether parents or otherwise) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
(e) It is possible that a child may have not a country of habitual residence at a particular point in time.
In addition, Mr Devereux reminds me of the further decision of the Supreme Court in Re LC (Children) (Reunite International Child Abduction Centre Intervening)  UKSC 1,  2 WLR 124. In particular, he relies on passages from the judgment of Baroness Hale at paragraphs 59 to 64. Of these, the most important seemed to me to be the passage at paragraph 59:
“The first principle is that habitual residence is a question of fact: has the residence of a particular person in a particular place acquired the necessary degree of stability…to become habitual? It is not a matter of intention: one does not acquire a habitual residence merely by intending to do so; nor does one fail to acquire one merely by not intending to do so.”
In addition, at paragraph 63, Baroness Hale observed:
“The quality of a child’s stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then or even later. Of course, there are many permutations in between, where a person may lose one habitual residence without getting another. ”
Relying on Baroness Hale’s analysis in these two cases, Mr Devereux submits that, in the event that the court concludes that the proceedings started on 16th April were discontinued by virtue of the father’s email of 7th May and not revived, the English court had jurisdiction to entertain a fresh application launched by the father in his email dated 28th May. As E had only been absent this country for 14 days prior to 28th May, he was still habitually resident in this country at that date. Accordingly, this court has jurisdiction under Article 8 of Brussels II Revised, as cited above.
In submitting that habitual residence had not changed in the 14 days between 14th and 28th May, Mr Devereux relies on a number of matters of fact. E was born in this country. She is a national of this country. Her father is a national of this country. E had lived in this country throughout her short life up to 14th May. E has another half sister in this country. Legal proceedings in respect of her had been started in this country. The mother had given an undertaking to return her to this country at the conclusion of the visit to Poland. The mother had worked in this country and received benefits from this country’s authorities, which she continued to receive (it is said) until September 2013. There is no evidence, submits Mr. Devereux, that the mother had found any settled home or lifestyle in Poland prior to 28th May.
In the alternative, Mr Devereux submits that, even if E’s habitual residence was changed in the 14 days between 14th and 28th May 2012, so that by the latter date she had acquired habitual residence in Poland, the jurisdiction of this court was prorogued, pursuant to Article 12(3) of Brussels II Revised by reason of the undertaking given by the mother to the court on 3rd May 2012 to return E to the country. Article 12.3 provides:
“The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings…where (a) the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that member state or that the child is a national of that Member State; and (b) the jurisdiction of the court has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.”
In Re I (A Child) (Contact Application: Jurisdiction) (Centre for Family Law and Practice and Another intervening)  UKSC 10,  1 AC 31, Baroness Hale observed at paragraph 34 that the father in that case
“gave an undertaking to the court to return the child to the jurisdiction when called upon to do so. The object of the proceedings was to enable him to take the child to live in Pakistan and thus lawfully to establish a habitual residence outside the jurisdiction. Yet at the same time he was undertaking to bring the child back when required by the court to do so. This inevitably involved accepting the court’s jurisdiction to make an order in relation, not only to him, but to the child.”
Thus the giving of undertaking to return a child to the jurisdiction amounts to an express and unequivocal acceptance of jurisdiction.
Discussion and conclusion as to jurisdiction
Of the three bases on which Mr. Devereux asserts that this court has jurisdiction, two are dependent on issues of fact. The first basis – that the original proceedings have at all times been extant – turns on the father’s intention in writing the email of 7th May and on his assertion that he telephoned the court office on the following day and withdrew the email. Neither the intention nor the assertion has been subjected to any detailed scrutiny by the court. The second basis – that E’s habitual residence had not changed prior to 28th May so that the court had jurisdiction to entertain a fresh application by the father, if that is the proper interpretation of his email of that date – turns on the facts surrounding the mother’s move to Poland on which only the father has so far set out evidence and submissions.
The third basis, however, seems to me to be incontrovertible. The mother gave an undertaking to the court to return E to this country by 16th July 2012. The permission given to her to remove E to Poland was conditional upon that undertaking.
The undertaking given by the father in Re I was to return the child whenever requested to do so by the court. That open-ended undertaking was interpreted as amounting to an unequivocal acceptance of jurisdiction. The undertaking in the present case was not open-ended but rather time-limited in the sense that the mother was obliged to return E by a fixed date. It seems to me that this is a distinction without a difference. In each case, the parent removing the child was obliged to return the child as directed by the court. Whenever a child is removed on the basis of an undertaking to return the child, that undertaking amounts to an express and unequivocal acceptance that the court to which the undertaking is given retains jurisdiction in matters of parental responsibility concerning the child until such time as the undertaking is fulfilled or discharged. On any view, the undertaking, and the concomitant unequivocal acceptance of jurisdiction, remained in effect as at 28th May 2012.
As for the other elements of Article 12.3, E’s father remained habitually resident in this country at 28th May 2012. E was, and is, herself a national of this country. Plainly therefore, she had, and has, a substantial connection with this country within the meaning of Article 12.3. Furthermore, it was at that date plainly in E’s best interests for the court to which the undertaking to return had been given to have jurisdiction in relation to matters of parental responsibility. Accordingly, if the proper interpretation of the father’s email of 28th May 2012 is that it was a fresh application under s.8 of the Children Act, the county court had jurisdiction to entertain the application under Article 12.3, even if E had by that date ceased to be habitually resident in this country.
The current application is brought in the proceedings started in 2012. It follows, therefore that this court has jurisdiction to hear the application under Article 12.3. Having reached a clear conclusion that the court has jurisdiction on that basis, I find it unnecessary to embark on the detailed factual enquiry required to determine whether either of the other bases for jurisdiction are made out.
I therefore declare that this court has jurisdiction to make an order for parental responsibility and a child arrangements order.
As I indicated to Mr. Devereux in the course of the argument, however, it seems to me necessary for this court to consider its power under Article 15 of Brussels II Revised to transfer the case to a court in Poland where E and her mother have now been living for over two years. Mr. Devereux indicated that he would wish to have time to consider this issue, stating that he was unaware of any previous case where a court had made a request under Article 15 in respect of a child who had been abducted. Accordingly, I agreed to adjourn consideration of that issue to a further hearing, and made directions for that hearing, including a direction that the mother must attend the hearing, directions for the filing of evidence relevant to the issue of a transfer of the case, permission for the father to obtain an expert report as to the legal procedures and principles that would determine an application for the equivalent of a parental responsibility order and a child arrangements order in Poland, and a request for a welfare check to be carried out and delivered to the court via the respective Central Authorities under Article 55.