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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> PH v AH [2016] EWHC 1131 (Fam) (09 May 2016) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2016/1131.html Cite as: [2016] EWHC 1131 (Fam)

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		9th May 2016

MR JUSTICE HOLMAN:

1. This is an application by a father for the return of his daughter, now aged 11, to Poland, pursuant to the provisions of the Hague Convention on the civil aspects of international child abduction. As Poland is a member state of the European Union, Council Regulation (EC) 2201/2003, known as Brussels II revised, applies to this case, and it ought to have been resolved within six weeks of the date of the commencement of the proceedings. The father actually commenced his proceedings on 29^th February 2016, so the time scale is already considerably past six weeks. In those circumstances it is with the utmost regret, and with profound sympathy and understanding for the position of the father, and indeed of his own mother who has travelled from Poland for this hearing today, that I am constrained to adjourn the final hearing for a second time to a significantly later date, namely 8^th July 2016.
2. It is, however, necessary to appreciate that family law ultimately concerns human beings, with all the frailties and circumstances of life which can affect them. Those circumstances can include serious accidents or significant ill health, and in this particular case clearly extend also to the imminent confinement of the mother with her second pregnancy.
3. The essential factual background is that both parents are Polish. They were married to each other, but are now divorced. They have one child, who was born in December 2004, and is now nearly 11 and a half.
4. There is considerable dispute on the documents between the parents as to many aspects of their life and circumstances in Poland, but the headline facts seem to be that after the separation of her parents the child lived initially with the mother, but since early 2014 was living essentially full time with her father. Indeed, at about that time the mother travelled to England where she seems to have been bent on establishing a new life for herself here. There is a dispute between the parents as to whether the arrangement that the child would live with her father was intended to be a permanent, or at any rate an indefinite one, as the father says, or intended to be a purely temporary one, as the mother says, while she established a home for herself here. Be that as it may, this child lived with her father for about two years from early 2014 until February 2016.
5. Throughout that period the mother was living in England, and apparently in Liverpool. She paid occasional visits to Poland and saw her daughter there. The mother was in Poland again in January 2016. It is highly significant that on 29^th January 2016 the mother herself, acting through lawyers in Poland, issued an application to a local court in Poland, asking that court to "permit [the child]…to permanently resettle abroad". It seems to me very clear and obvious from the very fact that the mother issued that application that she appreciated that she could not unilaterally remove her daughter from Poland without either the consent of the father or the permission which she was seeking from the Polish court.
6. By a later order, dated 18^th March 2016, the Polish court has in fact fixed a hearing date for 30^th May 2016, when the father is summoned to appear before that court. Meantime, however, the mother took matters totally into her own hands. Over the weekend of 30^th/31^st January 2016 the mother had the child staying with her at the home of her own mother in Poland, by agreement with the father. She was supposed to be taking the child to school the following week, where the father was to collect the child. In fact, she did not do so, but clandestinely brought the child from Poland to England. This appears, therefore, to have been a blatant example of a wrongful removal of the child from the state of habitual residence, and of international child abduction. With enormous promptitude, the father contacted the central authority in Poland for the purpose of the Hague Convention. The two central authorities also acted speedily, and, as I have said, the father's formal application to this court was issued on 29^th February 2016, within about four weeks of the abduction.
7. There were various interim hearings, and the matter was listed for final hearing on 19^th April 2016. On that day it came before Mr Justice Wood. He was, however, sitting as the applications judge. It is, I think, right to acknowledge that, as I understand it, this case was not effectively reached that day, and might in any event have had to have been adjourned due to lack of time in a very over stretched legal system. But there was another reason for adjournment. The mother attended in person and said that she had been unable to obtain legal aid and wished to have a further opportunity in which to do so. The upshot was that on 19^th April 2016 this case was adjourned and relisted for final hearing here today, on Monday, 9^th May 2016.
8. Paragraph 3 of the order made on that date provided that the mother must personally attend the hearing on 9^th May and also bring the child with her. The reason for that was that when the child had been seen by a Cafcass officer, the Cafcass officer reported that the child, aged 11, was "quite clear" that she wanted to meet with the trial judge. There was a clear recommendation, accordingly, that the child should be brought to the final hearing.
9. It is pertinent to stress that that order was made in the presence of the mother, who, so far as I am aware, raised no insuperable objection or difficulty about the hearing taking place on 9^th May 2016 here in London. However, as all parties well knew, the mother was in fact pregnant. Her estimated due date of delivery is 25^th May 2016, which is about 14 days from now, given that I am already giving this judgment during the course of the afternoon, and the notional due date of delivery will begin immediately after midnight at the end of 24^th May. I have to say that it seems to me a matter of the utmost regret that very active steps were not taken during 19^th April 2016 to see if a judge could not be available to hear this case in Liverpool in early May, even if the judge was not a full time judge of the Family Division, but a circuit judge sitting under section 9 of the Senior Courts Act 1981. It is one thing to require a mother in the very late stages of a pregnancy to attend a court local to her home, but quite another thing to expect her to travel from her home in Liverpool to the Royal Courts of Justice in Central London by public transport, bringing also an 11 year old child with her. But be that as it may, no such arrangements were made and the case was fixed for hearing here.
10. Last Wednesday, 4^th May 2016, the mother wrote a letter to the court, addressed simply to "Royal Court of Justice". That letter says "I'm writing this letter to inform you that I am unfortunately not able to attend the court on 9^th May for the hearing due to my late pregnancy (38 weeks) mean my baby could born any time of this month. Also I have been advised by my midwife I can't travel far, it will be a risk for me and my baby in this situation…". With that letter the mother enclosed also a letter dated 3^rd May 2016, last Tuesday, from a community midwife, which states that the mother is a patient of her employing body and that "as [the mother] is now in the late stage of pregnancy it will be unadvisable for her to be travelling long distances and being exposed to stressful situations, as she could potentially deliver her baby at any time. I would ask that you postpone the hearing until some time after she has had her baby." I do not know when precisely the mother posted those documents to the court, nor precisely when they arrived here at the Royal Courts of Justice. It may be that it took a day or so for the documents to travel over the weekend from the post room here to the office of the Family Division, but at all events the documents were received in the office of the Family Division earlier this very day, 9^th May 2016.
11. The Cafcass officer who had seen the child was in attendance today. Enormously helpfully, she made three telephone calls between about 10.30 and 11.00 a.m. this morning. She spoke first to the mother, who in effect repeated what she had said in the letter to the court. The mother did add that the child concerned is actually sitting SATs exams today and for several days this week. The mother apparently told the Cafcass officer that she had forgotten the date of the exams when she was last at court. At all events, the officer then telephoned the child's school, who confirmed that she is indeed sitting SATs exams today and onwards until Thursday. Finally, the officer telephoned the community midwife, who had written the letter of 3^rd May 2016, who in effect repeated what she had said in the letter. She stated to the Cafcass officer that it was her professional opinion that, given the late stage of the pregnancy, it would be impractical for the mother to travel. She did not, however, indicate that there was any unusual difficulty with the pregnancy apart from its very late stage.
12. Let me say at once that if the mother had been present today, the fact that she has still not obtained legal aid would not weigh with me at all. As I have said in other reported judgments, I personally regard it as grave, if not scandalous, that in applications under the Hague Convention non means tested publicly funded legal aid is automatically made available for applicants, but not for respondents. It is indeed difficult for respondents to obtain legal aid in relation to these cases, and increasingly they appear in person. I regard that as highly undesirable, and indeed a denial of the essential ingredient of a fair trial of equality of arms. But that is the position that has now been reached in this country. It is the policy ultimately of the government, and that being so, it would not have weighed with me that the mother was having to represent herself, if indeed she was present. One simply cannot go on and on and on adjourning applications under the Hague Convention on the off chance that at some later date a respondent parent may obtain some form of legal aid or legal representation.
13. I also make clear that if the mother was not pregnant, or at any rate at so late a stage of her pregnancy, then I would have given very serious consideration today to issuing a bench warrant for her to be arrested and brought in custody before the court. Unless there is very good reason, it is simply intolerable when a party to proceedings of this kind has been ordered to attend court and then fails to do so. But it is, in my view, really unthinkable that I should make an order today that has the effect of uniformed police going round to the mother's home in Liverpool, arresting her, and bringing her in custody to the court here in London, the more so as by the time any such order had been executed, and she had arrived here, it would be too late to have any sort of effective hearing here today in any event.
14. Ms. Geraldine More O'Ferrall, who appears on behalf of the father, has not suggested that I should in fact issue a bench warrant or bring the mother before the court in custody. What she has, however, very strongly submitted is that I should simply proceed to hear this matter in the absence of the mother. She submitted that if I was persuaded that an order should be made for the return of the child to Poland forthwith, then the father could simply travel to Liverpool equipped with that order, and insist upon the handing over of the child. That does not seem to me to be a good scenario, the more so as this child, aged 11, has clearly stated to the Cafcass officer a firm preference to remain living here in England and in the care of her mother, and a degree of animosity towards her father. The Cafcass officer makes plain that that preference does not amount to an "objection" for the purpose of, and within the meaning of, the Hague Convention. Nevertheless, it would, in my view, be quite contrary to the welfare of a child of this age for a judge sitting here in London, in the circumstances that I have outlined, to make an order that contemplated the father arriving on the doorstep in Liverpool, and in some way a forced hand over of the child from the mother to the father for an immediate journey to Poland.
15. I have also made plain today that if the mother was not in so late a stage of pregnancy, and if she was in fact present at court, my provisional inclination would have been to order the return of the child forthwith to Poland, but contemplating that she would travel there, not in the care of her father, but in the care of her mother. As I have already said, there is already a fixed hearing before the Polish court on 30^th May 2016. But for the late stage of the mother's pregnancy, it would obviously be highly desirable that this child was returned to Poland in advance of that hearing, so as to be present in that state and amenable to the jurisdiction of that court, which could then decide whether the child should remain in Poland or could return to England with her mother. But I cannot make an order that contemplates the return of the child to Poland in the care of her mother at the moment. I have been told that it is a two hour flight from Stansted to the local airport in Poland. It is indeed highly unlikely that any airline would now permit the mother, at so late a stage of her pregnancy, to fly a journey of that kind. If, alternatively, she was to undertake the journey by sea and vehicle, I am told that the overland journey is about 30 hours. It would be inhumane to expect this mother, two weeks before she was due to give birth, together with her child, aged 11, to undertake a journey of about 30 hours to Poland. In other words, it is simply inconceivable that this child could travel with her mother to Poland until some time after the mother has given birth.
16. In these circumstances, in my view, my hands are completely tied by the circumstances and realities of this case. At one stage today, Ms. More O'Ferrall said that I, the court, "have a problem". I do not regard myself as having a problem. If anyone has a problem, I regret that it is the father who has a problem in these circumstances. The fact of the matter is that, overarchingly, this jurisdiction under the Hague Convention must be exercised in a way which keeps the welfare of the child concerned in the forefront, and which enables both parents to have a fair hearing, and which is humane to both parties. We are simply far too close now to the mother's estimated due date of delivery to contemplate final resolution of this case today or at any time until after she has given birth. Ms. More O'Ferrall said that the father wished very strongly to emphasise that currently the child's place at her old school in Poland remains open, but that it may not be open after the end of May or thereabouts. I regret that fact, but I really cannot allow the availability or non-availability of a particular place in a particular school to outweigh the much more significant considerations impacting on this case.
17. So I am absolutely clear that it has to be adjourned, and adjourned until a date after the mother has actually given birth. Realistically, I must then allow some period of time for the mother to recover her strength following the birth, and for any immediate post birth problems with the baby to be resolved. So it seems to me that the earliest possible time that one could sensibly consider relisting this matter is towards the end of June, by which time the baby is expected to be about a month or so old. In order further to assist and accommodate the mother, I have taken a relatively unusual decision in cases under the Hague Convention, to identify a hearing date in Liverpool, very locally to where the mother lives. Ordinarily in these cases it is required and expected that the abducting parent will travel to the Royal Courts of Justice in London, where there is a pool of judges of the Family Division sitting. That is to my mind eminently justifiable wherever the abducting parent may live, in view of the gravity of the issues and the crisis that child abduction represents in any parent's or child's life. But exceptions can be made. I wish to make it as easy as possible for the mother to travel to court as soon as possible. I have identified that Mr Justice Peter Jackson is sitting in Liverpool in early July, and does have a completely free day on Friday, 8^th July 2016. I will, accordingly, list this matter for final hearing before him on that date at the Civil and Family Courts in Liverpool. By then it will have been some three months since the Cafcass officer saw the child on 5^th April 2016. Obviously, it will have been a significant period in the life of this child, given that her mother is giving birth to a half sibling. It seems to me, therefore, that in view of the delay it is essential that the Cafcass officer sees the child again, relatively shortly before the next hearing, and I make provision for that. Unfortunately, the officer will not be available even by video link on 8^th July because she happens to be on holiday in that week. But in my view the availability of a sitting of a High Court judge locally to the mother on 8^th July 2016 must prevail over the desirability of the availability of the Cafcass officer, and I accordingly direct that she need not attend or participate in the hearing, and I direct that neither party will be able to cross-examine her on her reports. I have indeed read the existing report by the officer, and it is very full and clear, and I see no reason why that and any later report by her should not stand or fall on what it says, without the need for anybody to cross-examine further.
18. I will provide that if there is any medical reason consequent upon her delivery, or with reference to the new born baby, which it is alleged makes it impossible for the mother to attend the hearing on 8^th July, then she must notify the solicitors for the father and the court in good time, and the notification must be supported by detailed medical evidence explaining the relevant medical circumstances and why it is impossible for the mother to attend. But subject only to that, I wish to make crystal clear that there is to be no further wriggling in this case. The mother absolutely must attend, and she absolutely must bring the child with her. The order I make today will have a penal notice prominently displayed on the front, and the mother must clearly understand that if she fails to attend next time, and fails to bring the child with her, then she is liable to be arrested and brought to court and would be liable to be found in contempt of court and punished for that contempt. This is now very serious.
19. The order made on 19^th April made provision by consent for Skype contact three days a week between the child and the father. That having been made by consent, I most certainly and willingly repeat it in the order made today. I have been told that there have been difficulties with the Skype contact, but I cannot investigate that in the absence of the mother. I was pressed to make a more specific order for direct face to face contact between the child and the father between now and the hearing on 8^th July. In the absence of the mother, I am not willing to do that, particularly as there is material from the Cafcass officer tending to indicate, as I have said, that the child has some unwillingness to relate to her father at the moment. I will, however, state on the face of the order that I strongly urge both parties to negotiate and agree some provision for some direct face to face contact between the child and her father between now and the next hearing. The other detailed provisions of the order are, I hope, self explanatory.
20. Before the next hearing takes place there will of course have been the hearing before the court in Poland on 30^th May 2016. I have no idea what each party may represent to the court at that hearing, nor what the decision of the Polish court may be. That is exclusively a matter for the decision of the Polish court, being indeed the court of the state of habitual residence at the time that proceedings before it were commenced. It is, however, obvious that the decision of that court, whatever it may be, may help to illuminate and impact upon any further decision here on 8^th July 2016, so it will be very important that this court, on 8^th July 2016, has a clear knowledge of the decision of the court in Poland and the reasons for it.
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