High Court orders return of 11-year-old child to Poland after removal to UK by father

About this case:

• Citation:
  [2024] EWHC 3208 (Fam)
• Judgment:
  External link
• Court:
  England and Wales High Court
• Judge:
  Vikram Sachdeva KC

F, the applicant, argued that the respondent G had failed to establish any defence to the return of her youngest daughter P, who stayed with her mother when the parties separated. The respondent conceded that P was habitually resident in Poland but defended the application on the basis of harm and on the child’s objections.

The case was heard by Deputy High Court Judge Vikram Sachdeva KC, with Mehvish Chaudry appearing for the applicant and Jonathan Rustin for the respondent.

Ameliorate the risk

The parties, both Polish nationals, met and married in the UK in 2006 and 2007 respectively, and returned to Poland at the end of July 2020. Their first daughter, L, was born in 2008 and their second daughter P was born in 2013. On 14 May 2021, the parties separated, and it was agreed that L would live with the respondent and P with the applicant, with the other parent having visiting contact with their non-resident daughter.

In February 2024, as part of the parties’ divorce negotiations, it was agreed that the respondent would visit Poland and take P away for a holiday and back to the UK. The parties disputed whether the applicant was due to collect P from the UK on 23 July or 9 August, when she arrived take P back. On that day, P stated that she did not want to go back to Poland with the applicant. It was suggested that both children stay with the respondent until 23 August 2024, but when P was not returned on that date an application for summary return was made.

In his witness statement, the respondent alleged that by 9 August P had made it clear to him that she was fearful of her mother, that she had missed school as a result of the applicant travelling for work, and that she had witnessed inappropriate sexual relationships between her mother and a number of males. The applicant’s statement alleged that the respondent had manipulated L to stay with him previously and was now attempting to do the same thing with P.

For the applicant it was submitted that the allegations of harm made by the respondent were false, and the protective measures she agreed to undertake were sufficient to ameliorate any risk. Discretion should be exercised to override the child’s objections, noting that there were ongoing proceedings in Poland and that the respondent’s conduct reflected a complete disregard for the applicant’s parental responsibility.

Not sufficient detail

In his decision, Deputy Judge Sachdeva said of the risk of harm to P: “It is clear that the father has an incentive to present P’s state in her mother’s care adversely, there having been a battle over custody of the two children since he separated from the mother in 2021, so caution is required in relation to these allegations and the presence of corroborative evidence would be relevant. However these allegations are not supported by any contemporaneous evidence.”

He added: “There is no evidence that such an allegation has been made by the father or P to the Polish court, and the expert report in the Polish proceedings dated 4 April 2023, in identifying a positive attitude by P towards the mother, is inconsistent with that allegation. The letter which P wrote to the mother on 19 August 2024 did not mention anything about physical abuse.”

Sachdeva J concluded on this arm of the case: “Taken cumulatively, the allegations do not meet the grave risk of harm/intolerability criterion. Although the nature of the allegations concerning physical harm could constitute a grave risk, they are not of sufficient detail and substance that they could constitute a grave risk of harm. As to the psychological allegations, they are not of a nature or of sufficient detail and substance that they could constitute a grave risk of harm.”

Evolution of views

Assessing whether to override the child’s objections, Sachdeva J said: “It is instructive to consider the evolution of P’s views in the last 18 months. In April 2023 she told the Polish experts that she valued living with her mother and was distant from her father. In December 2023 when exchanging text messages with L, she expressed a wish to live with her father and L, but it could not be inferred from that exchange that the feeling was strong.”

He explained further: “From 17 July 2024 onwards, having spent just over a week in the company of her father and L, she has been objecting to returning to Poland, which by 29 October was of the strength of 8 – 9/10. The reason for this dramatic change in attitude was the influence of her father and L.”

Sachdeva J concluded: “Overall, taking account of the context in which the child’s objections have arisen (being at the centre of longstanding family conflict), and balancing the factors in favour of return and against it, I consider that the welfare considerations and Convention factors should be given predominant weight, the objections being due to the influence of the father and L, and the discretion should be exercised so as to override P’s objections.”

The court therefore allowed the application and ordered the summary return of P to Poland.