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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 >> D (A Child), Re  EWHC 471 (Fam) (08 March 2011)
Cite as:  EWHC 471 (Fam),  2 FLR 464,  Fam Law 571
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This judgment is being handed down in private on 7th March 2101. It consists of 14 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates and their solicitors may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Strand, London, WC2A 2LL
B e f o r e :
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(By her Guardian ad Litem,)
Ms Gill Honeyman Cafcass Legal for the Second Defendant
Hearing dates: 25th February 2011
Crown Copyright ©
Mrs Justice Theis DBE:
 " As to the jurisdiction and role of the court, it seems to me: first, that what the court is not doing is carrying out an appeal process in respect of a decision of a foreign court or anything akin to that. Secondly, it seems to me that the court is not itself applying Art 13 or a Hague jurisdiction as such. Rather, it seems to me, that what the court is doing is exercising the jurisdiction it always held under Art 10 which is a welfare jurisdiction and, therefore, it is a welfare approach that has to be applied. Within that approach applying English law, there is the ability of the court to order a summary return of a child to another jurisdiction. So it seems to me that the court in exercising its welfare jurisdiction has the power to make a summary order under Art 11(7) in an appropriate case (see by analogy to the decision of the House of Lords in Re J (A Child: Custody Rights Jurisdiction)  UKHL 40,  1 AC 80,  3 WLR 14 sub nom J (Child Returned Abroad: Convention Rights)  2 FLR 802). In particular, I would draw attention to para  of the speech of Baroness Hale of Richmond in Re J which identifies that summary orders are within the jurisdiction of the court and from para  onwards where she deals with the factors to be taken into account by the court in making the choice as to whether or not to order a summary return or to embark upon a welfare inquiry.
 Necessarily, a summary return does not involve a full welfare inquiry or anything approaching it, albeit it that it is applying a welfare test. In the present context it would, however, inevitably involve an effective rejection or an effective refusal not to follow the decision of the foreign court not to return the child under Art 13, but that is inherent in Art 11(7) itself. It seems to me that cases could well arise for a variety of reasons in which this court may feel it appropriate to exercise its jurisdiction under Art 11(7) on a summary basis albeit applying a welfare test. There may, for example, be differences if the refusing court acted under Art 13a rather than 13b. In that context Art 11(4) may have some relevance.
 So it seems to me, given the existence of the power and jurisdiction to make a summary order and having regard to the history of this case and the lessons that could be learned from it, that as soon as possible after an application under Art 11(7) I issued, there should be directions from the court in which the court should expressly consider the approach that is to be taken to the case, namely: is the case to be determined on a summary basis and/or is there to be a welfare inquiry and, if so, what is to be the extent of that welfare inquiry and, therefore, what directions need to be made in that context? Also, importantly, at that first directions hearing or as soon as possible thereafter, the issue whether or not the child should be joined and, if so the representation of the child, should be determined."
'Consequently, the answer to the second question is that Article 11(8) of the regulation must be interpreted as meaning that a judgment of the court with jurisdiction ordering the return of the child falls within the scope of that provision, even if it is not preceded by a final judgment of that court relating to rights of custody of the child.'
"61. Further, as the European Commission has correctly observed, the court which is ultimately responsible for determining rights of custody must have the power to determine all the interim arrangements and measures, including fixing the child's place of residence, which might possibly require the return of the child.
62 The objective of the provisions of Articles 11(8), 40 and 42 of the regulation, namely, that proceedings be expeditious, and the priority given to the jurisdiction of the court of origin are scarcely compatible with an interpretation according to which a judgment ordering return must be preceded by a final judgment on rights of custody. Such an interpretation would constitute a constraint which might compel the court with jurisdiction to take a decision on rights of custody when it had neither all the information and all the material needed for that purpose, nor the time required to make an objective and dispassionate assessment.
63 As regards the argument that such an interpretation might lead to the child being moved needlessly, if the court with jurisdiction were ultimately to award custody to the parent residing in the Member State of removal, it must be stated that the importance of delivering a court judgment on the final custody of the child that is fair and soundly based, the need to deter child abduction, and the child's right to maintain on a regular basis a personal relationship and direct contact with both parents, take precedence over any disadvantages which such moving might entail.
64 One of the fundamental rights of the child is the right, set out in Article 24(3) of the Charter of Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1), to maintain on a regular basis a personal relationship and direct contact with both parents, respect for that right undeniably merging into the best interests of any child (see Case C 403/09 PPU Deticek  ECR I 0000, paragraph 54). It is clear that an unlawful removal of the child, following the taking of a unilateral decision by one of the child's parents, more often than not deprives the child of the possibility of maintaining on a regular basis a personal relationship and direct contact with the other parent (see Deticek, paragraph 56).
65 Consideration of the situation at issue in the main proceeding again demonstrates the correctness of this approach.
66 The grounds for the judgment of 10 July 2009 whereby the court with jurisdiction ordered the return of the child were that the relationship between the child and her father had been broken. Consequently, it is in the child's best interests to re establish that relationship and also to ensure, if possible, that the mother is in Italy, so that the relationship of the child with both parents, and the parental abilities and characters of the parents, can be examined thoroughly by the competent Italian authorities, prior to delivery of a final judgment on custody and parental responsibility.
67 Consequently, the answer to the second question is that Article 11(8) of the regulation must be interpreted as meaning that a judgment of the court with jurisdiction ordering the return of the child falls within the scope of that provision, even if it is not preceded by a final judgment of that court relating to rights of custody of the child."
a. The child was given an opportunity to be heard unless such was inappropriate.
b. The parties were given an opportunity to be heard
c. The court has considered the reasons for and evidence underlying the non-return decision.
(1) The interrelationship of Articles 10 and Articles 11(7) and (8) of BIIR permit the State of origin (from where the child has been wrongfully removed or retained to) to undertake an examination of the question of the custody of the child, once a judgment of non return pursuant to Article 13 has been made by a State where a request has been under the Hague Convention 1980;
(2) Proceedings under Article 11(7) should be carried out as quickly as possible (M v T (Abduction: Brussels II Revised, Art 11(7)) at para  at 1689);
(3) In undertaking the examination of the question of the custody of the child, the Judge should be in a position that he or she would have been in if the abducting parent had not abducted the child. Thus the whole range of orders that would normally available to a Judge should be available when examining the question of the custody of the child (Re A; HA v MB (Brussels II Revised: Art 11 (7) Application) at para ; M v T (Abduction: Brussels II Revised, Art 11(7)) at para  at 1691 1692);
(4) In undertaking the examination of the question of the custody of the child, the court exercises a welfare jurisdiction: the child's welfare shall be the court's paramount consideration (section 1(1) of the Children Act 1989; Re A; HA v MB (Brussels II Revised: Art 11 (7) Application); M v T (Abduction: Brussels II Revised, Art 11(7)) at para  at 1691 1692);
(5) It may not be necessary or appropriate to categorise the jurisdictional foundation for such an enquiry as deriving from, or relying upon, the inherent jurisdiction. The foundation for any examination of the question of the custody of the child is simply through the gateway of Article 11(7);
(6) The court has a well known and historic ability to order the summary return of a child to and from another jurisdiction;
(7) As part of the court's enquiry under Article 11(7) the court does have the ability to order a summary return of the child to this country to facilitate the decision making process leading to a final judgment (M v T (Abduction: Brussels II Revised, Art 11(7)) at para  at 1692; Povse v Alpago Case C-211/10  2 FLR 1343);
(8) In deciding whether to order a summary return or to carry out a full welfare enquiry, the court exercises a welfare jurisdiction. (M v T (Abduction: Brussels II Revised, Art 11(7) at para  at 1692). It is not altogether clear whether the decision to order a return of the child on a summary basis is more appropriately considered as akin to that which might be ordered under the inherent jurisdiction or whether it is effectively a specific issue order under the Children Act 1989 order: if it is more appropriately considered as akin to the inherent jurisdiction then at least as to the question of summary return it may not be necessary for the court mechanistically and slavishly to direct itself to the welfare checklist; that having been said, once the child has returned and the court is considering what order to make the court should direct itself to the welfare checklist;
(9) Any summary return order is directly enforceable through the procedures in BIIR (see, Article 42 and Article 47 of BIIR, Povse v Alpago (supra)).
The child's welfare
(a) the risks posed by the father's alleged excess consumption of alcohol
(b) an absence of secure provision of the 'necessities' of life in England
(c) a return to the father's care and/or England would be contrary to the child's wishes. This appears to be based on the mother indicating she would not return.
(1) In relation to the alcohol related risks it is said the alleged incidents are relatively old (dating back to 2008) are relatively general in nature and the extent of the drinking is not as extensive as alleged. In November 2009 the letter from the GP records the father's liver function tests were normal and did not indicate any liver damage. The more recent hair strand tests record a negative finding for the period October 20101 to January 2011.
(2) The evidence points to the father having a significant role in the child's care prior to her retention in Poland. The father was not working and was in receipt of incapacity benefit. The mother was working four days per week and no outside agency was concerned about the care of the child.
(3) The other incidents complained of are denied by the father. He has offered undertakings that would ensure the mother and the child are housed and that the child would not be removed from her mother's care pending the next court hearing. Whilst the mother has expressed reservations about returning to the former family home in the short term that would provide suitable accommodation for the mother and the child whilst the welfare enquiry is undertaken.
(4) The circumstances in which the child's wishes have been obtained give cause for concern. She was 3 years 8 months at the time she was interviewed. Her views as to where and with whom she would want to live should be of limited weight.
(1) His relationship with the child will be unduly restricted and he and the child will be denied regular ands meaningful contact. Both the father's and the child's rights under Article 8 EHCR are engaged.
(2) The father's ability to properly present a case for either sole or shared care of the child is severely restricted as they cannot maintain their relationship and the court cannot properly assess his ability to be the child's carer either on a shared or sole basis.
(3) A new status quo will develop which will almost inevitably result in the mother becoming the child's long term primary carer and the relationship between the child and her father being limited.
(4) The mother has not facilitated contact previously and has not properly engaged in these proceedings to date resulting in considerable delay.
(1) To enable this court to undertake a proper welfare enquiry at the hearing listed to commence on 11th April to consider what orders should be made for the future care of the child the court needs the father to have an opportunity to spend some time with the child in this jurisdiction and for that to be assessed by the Guardian.
(2) Both parties in this case have very limited means which have an impact on the realistic options available to the court.
(3) By allowing some extra time before the return order is effective will enable the mother to make suitable arrangements with her employer to take time off.
(4) On the information I have seen it is more likely than not that the mother will accompany the child to this jurisdiction. It would be in the child's interests if she did. That is what she indicated in her statement (paragraph 56) and it gives sufficient time to make practical arrangements that will make it easier for her to do so.
(5) If the mother doesn't plan to accompany the child the short delay will give the father sufficient time to make the necessary arrangements to accompany the child back to this country. The father is having some Skype contact with the child, she saw him in January and he will see her when the Guardian travels to Poland.
(6) The order will take effect after the Guardian has visited Poland. As indicated during the hearing arrangements need to be made for the father to go out to Poland at the same time as the Guardian to see the child and I will make such orders as are necessary to ensure the contact takes place during that visit.
(7) By structuring the order in the way that I have it will enable the Guardian to see the child in Poland with her mother and father and for the same to happen in this jurisdiction.
(8) The concerns raised by the mother regarding the father's behaviour and the consequent risks are manageable due to the following factors: (i) the undertakings that the father offers (ii) the mother would have access to legal representation in this country (iii) the child is separately represented within these proceedings (iv) the spotlight of the court is on this family which will act as a deterrent and thereby reduce the risks the mother is concerned about regarding the father's behaviour.
(9) I have not required the father to pay any further sums of money. He paid the sum of £650 on 25th January to the mother for the purposes of funding the travel expenses for the mother and the child back to this jurisdiction. That money is still available to the mother for the purpose for which it was intended.
(10) I have balanced the fact that the date for the child's return to this country is very close to the three day hearing listed to commence on 11th April with the fact that if I ordered her return significantly before then it may prompt an application by the mother to return with the child to Poland pending the hearing and then to return back for the hearing in April. In addition it is important as part of the welfare enquiry for the mother, father and the child to be seen in Poland. Whether the court will be able to make final orders at the hearing in April will depend on the information that is available. I will direct that the mother and father do file statements setting out their plans for the future care of the child.
(11) By ordering the child's return when I have it is more likely that the mother will be present for the hearing in April and participate in that hearing which will be in the child's interests.
(12) I have as a guide considered the welfare checklist in section 1 (3) of the Children Act 1989 in reaching my decision and in particular the physical and emotional needs of the child, the likely effect of any change in circumstances, any harm she is at risk of suffering, the capability of each of the parents to meet her needs and the range of orders the court can make.
a. the child was given an opportunity to be heard unless such was inappropriate
The child is 4 years old. Her views as ascertained in Poland are unlikely to have changed. She will be closely aligned to her primary carer. The Guardian had sought the opportunity to obtain the child's views but the mother declined to co-operate. The mother's obstruction cannot give a ground for saying the requirement is not met. In determining when the order should take effect I have ensured the Guardian will have the opportunity to see the child in Poland first and given sufficient time for the mother to arrange to accompany the child back to England.
b. the parties were given an opportunity to be heard
The Mother has been in possession of the papers since 27th October and she had solicitors acting on her behalf from 16th December 2010 until early February 2011. Those solicitors endeavoured to keep in contact with the mother, that she failed to respond to and she failed to comply with the necessary requests that would continue her public funding. She has been sent details of alternative expert solicitors and has engaged Polish lawyers. She was aware of this hearing and has had the opportunity to be heard.
c. The court has considered the reasons for and evidence underlying the non-return decision.
I have considered the judgment of the Polish Court dated 30th July 2010 and the reasons for and the evidence underlying the non-return decision. The father has set out his response to the reasons for the non-return decision in these proceedings. This evidence has been considered together with the following matters: (i) the undertakings the father has offered; (ii) the mother has access to legal advice and representation within this jurisdiction; (iii) The child is represented within these proceedings; (iv) the spotlight of the court will be on the family; (v) the protection offered by the courts, social services and the police.