Court of Appeal orders rehearing for child abduction application

The child, M, had been residing with his mother, another Polish national, in England, with the father’s contact limited to holiday contact and alternate weekends. By the time of the appeal, M was seven years old.

The case was heard in the Court of Appeal of England and Wales (Civil Division) by Lord Justice Moylan, Lord Justice Jackson, and Lord Justice Newey.

Did not return the child

The father’s parental responsibility for M was limited by the Polish court in 2013, but he retained the right to share in the making of important decisions about M’s life. In July 2018 the mother and M travelled to England for a holiday, with his permission.

In August, the mother told the father that she wanted to remain in England for a few months to do further work on a business that she was intending to set up. The father’s case was that he was not happy about that but that he acceded to an extension on the basis that M would be returned to Poland by the end of the year.

M started school in England in October 2018, and his father visited him twice in the autumn. In November 2018, the mother became engaged to a Polish man who had been living in England for 14 years and had two children of his own in the country.

M continued to mostly reside in England until 7 April 2019, when it was arranged for him to visit his father in Poland over the Easter. The father did not return M by the agreed date, and applied to the Polish court for M to live with him. The mother then applied for M’s return to England under the Hague Convention.

In May 2019, M was returned to England, and the mother withdrew her Hague Convention application. The father then brought an application of his own under the Hague Convention for the return of M to Poland.

The final hearing took place in January 2020 in the High Court. The father had legal representation at this hearing, while the mother represented herself due to a failure to obtain legal aid. The judge ordered M’s return to Poland, with the issues of the father’s consent and acquiescence to the arrangement for M to remain in England being major factors.

Upon being asked to clarify his reasons, the judge stated that he found that M had not been sufficiently uprooted from Poland to lose his habitual residence there, as there was a significant degree of uncertainty that continued to exist in 2019 about the mother’s plans.

The mother argued on appeal that that judge misdirected himself in considering whether and when she had formed an intention to remain “permanently” in England. Further, the judge’s analysis of the issue of habitual residence was inadequate in his judgment and flawed in his clarification. He did not explore M’s connections with England in a child-focused way and he gave excessive weight to matters that were irrelevant.

Peculiar difficulties

In his opinion, with which Jackson LJ and Newey LJ agreed, Moylan LJ acknowledged the peculiar difficulties of the case, saying: “The judge was handicapped, in contrast to the expertise available to this court, by the fact that the mother acted in person. As referred to above, the consequence was that the mother’s case, which potentially raises a number of difficult legal issues as well as a number of factual issues, was not advanced with the requisite degree of clarity.”

He continued: “However, whilst I have every sympathy for the position the judge found himself in, the result has been that he did not sufficiently engage with the issues which had to be addressed in order for the father’s application under the 1980 Convention to be properly determined.”

Addressing whether the father had acquiesced to M moving to England, he said: “There is a clear distinction between consent, on which the judge focused, and acquiescence which, despite [the father’s] submissions, was not addressed by the judge in any sufficient detail. There is also force in the submission on behalf of the mother that, by formulating the issue during the hearing as being whether the father had consented to M living in England permanently, the judge did not enable the mother to advance her case that the father had acquiesced in M’s remaining in England.”  

On the issue of habitual residence, he said: “The judgment, including the clarification, does not contain a sufficient analysis of the relevant factors necessary to explain, or indeed support, the judge’s conclusion as to M’s habitual residence.”

He added: “His conclusion that M’s ‘degree of integration in England was not such that his habitual residence in Poland had changed to England’ is unsupported by any analysis which focuses of the position from M’s perspective. The factors referred to by the judge are almost entirely directed to the mother’s position, in particular her intentions and whether she had decided to stay permanently in England.”

For these reasons, the court ordered a rehearing of the father’s Hague Convention application, unless the parents could come to an agreement.