M v F & Ors [2008] EWHC 2049 (Fam)

[2008] EWHC 2049 (Fam)Case No FD08P01420
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/08/2008
Before
MRS JUSTICE BLACK
Between
1. FDefendants2. J and JM
Mr Nicholas Anderson (instructed by Messrs Lyons Davidson) for PlaintiffMs Alison Ball QC & Mr Stuart Fuller (instructed by Messrs Rowberry Morris) for 1 st DefendantMs Melanie Carew (instructed by CAFCASS Legal) for 2 nd DefendantsHearing Hearing dates: 19 th& 20 th August 2008
Judgment
[1]This is a Hague Convention application by M who is the mother of 2 children, J (b. 16 September 1999, therefore nearly 9, referred to here as J) and MJ (b. 25 September 2002, therefore nearly 6, referred to here as MJ). The Defendant is the children’s father, F. The children have been joined as parties to the litigation and have the benefit of a guardian, Mrs J S, and legal representation.[2]M seeks the return of the children to Poland. F concedes that he removed the children wrongfully from Poland but opposes M’s application on two grounds which can be summarised shortly as settlement and children’s objections.[3]This is the second Hague application that M has made in relation to the children, the first having culminated (by consent) in an order dated 5 March 2007 for the return of the children to Poland (“the first Hague order”).[4]There is little dispute about the history. The parents are both Polish. They were living together in Poland when the children were born but separated in September 2004. The children lived with M but continued to see F. In February 2005, F came to live in England. On 12 July 2006, the children came to England for what M thought was to be a holiday with F. They were due to return to her in Poland on 22 August 2006. F wrongfully retained the children in England, refusing to return them at the end of the holiday. F and the children lived with F’s sister in her flat until the start of October 2006 and then moved to another flat in the same house as the sister’s. F has been based there ever since. The children stayed there with him until he took them back to Poland on 27 or 28 March 2007 (the date is given variously), pursuant to the first Hague order. J attended at a local school from September 2006 until his return to Poland and MJ attended nursery.[5]Proceedings were already on foot in Poland when the children came to stay with F in the summer of 2006, M having petitioned the Lublin District Court by a document dated 30 June 2006 to “establish the place of residence” of the children with her.[6]Following F’s failure to return the children after their 2006 holiday, M obtained a Polish order that they should stay with her until the court proceedings in the case were complete. F appealed unsuccessfully against this.[7]Meanwhile, M had began the first Hague proceedings in England by an originating summons dated 25 January 2007. F defended those proceedings on the basis of the children’s objections and on the basis that there was a grave risk that the return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation. A CAFCASS report was prepared by Ms Kay Demery. Amongst other things J told her that he wanted to stay in England and MJ said he preferred England to Poland. J described how their mother thought they were to have a holiday with their father but they knew that F was bringing them to England for good. Both J and MJ told Ms Demery that they did not want to see their mother as she would do anything to keep them in Poland. From the entirety of her interview, Ms Demery concluded that the views expressed by the boys were contradictory and did not, per se, amount to an objection to returning to Poland. She thought they were operating at a level of maturity commensurate with their chronological age but that at 7 ½ and 4 ½, they were too young fully to understand the implications of the decisions that needed to be made about their future and neither had reached the age or level of maturity when their views would be the determining factor in the application.[8]The 5 March 2007 consent order provided for the children’s return to Poland with their father by no later than 1 April 2007. Both parents gave undertakings in a form which has become quite commonplace in such proceedings. M’s undertakings included an undertaking not to remove the children from F’s care pending the first inter partes hearing before a Polish court and F’s included an undertaking to provide M, through her English solicitors, at least 7 days prior to his return to Poland, with the address at which he and the children would be staying in Poland and an undertaking to remain with the children in the Lublin area pending the first inter partes Polish hearing. I enquired of Miss Ball QC, who represents F, whether F was in breach of his undertakings and whether that affected his right to be heard by this court. There seemed to be some room for debate as to whether there was a breach or not. Given that I had reached the conclusion that, as this is a case concerning children, I should hear full submissions on behalf of F in any event, it seemed to me that there was little to be gained in investigating further. F must be very conscious of the difficulty of his position, coming before this court to admit that for the second time he has wrongfully brought/retained the children here, breaching orders of the Polish court and, as became clear during this hearing, entering this country using passports for the children which he knew had been cancelled by the Polish authorities.[9]Following the children’s return to Poland towards the end of March 2007, M saw them on 9 occasions. The parties do not agree about where F was living with the children at this point. F says he rented a flat approximately 700 yards from M’s flat in Lublin but M says he was rarely there and in fact lived with his parents in T about 150 kilometres away. It is common ground that F was always present on contact visits. M says he was obstructive over contact; F says he told M that she could have contact any time she wished. He concedes that the children eventually enjoyed M’s visits. The last contact visit was on 4 May 2007. M says that on that day she was carrying MJ in her arms and the child asked when she was going to take him home. F grabbed him and said “Now you won’t see the children for a long time”. When they went back to his flat, F started to pack the children’s belongings and told M they were going to T for a barbecue.[10]F seems to have given the children to understand that they had returned to Poland for a holiday. He had applied to the Lublin District Court, in a document dated 12 March 2007, for a change of the decision of 27 September 2006 transferring the residence of the children to him in England until the end of the proceedings and his subsequent communications with the Polish court underlined his wish to have the children living with him in England.[11]On 18 April 2007, F’s application for a variation of the 27 September 2006 order was dismissed. On 20 April 2007, the Lublin Court considered a further interim application by M. Both M and F participated in the proceedings that day. The judge was of the view that M had a justifiable fear that the children could be taken abroad by F and so issued an interim order prohibiting F from leaving Poland with the children for the duration of the Polish proceedings and decided to submit a request to the Citizenship Matters Department for the cancellation of the passports of J and MJ. The passports were duly cancelled - notice of cancellation was provided to both M and F - but F remained in possession of the cancelled passports.[12]F was dissatisfied with the way in which the Polish proceedings were going. He has been very critical of the approach of the Polish courts. He requested that an independent court appointed supervisor be appointed to inspect the children’s accommodation and it appears that this was done. He also appealed, unsuccessfully, against the refusal to vary the 27 September 2006 order.[13]F then took matters into his own hands and, on 5 June 2007, returned with the boys to this country without the knowledge or permission of M or the Polish courts. I am told that he was questioned for about an hour by the immigration authorities at Stansted airport because the Tipstaff had recorded the numbers of the passports of the children in connection with the first Hague proceedings, but he managed to get round that problem by explaining that those proceedings were over. Plainly, he did not alert the authorities to the fact that the children’s passports had been cancelled in Poland. He and the children were allowed to enter this country. They went back to the flat they had been living in before. J went back to his old school the following week and MJ joined him there in the autumn term 2007. These have been the arrangements ever since.[14]On 23 August 2007, the Polish court held a further hearing. Both parties attended and evidence was given. Once again, the issue was with which parent the children should live. F told the court that the children were with him and wanted to stay with him and live in England. He told the court that he had moved from his Lublin address at the beginning of June “and went to P for two weeks to visit friends and I did not provide the address of these friends in P or their details, with the children’s safety in mind in fear of the applicant. Afterwards we went to the seaside and I got my friends’ house to look after, as they had gone abroad. It is possible that these friends will not return, as they are in England. I live in this house together with the children. I cannot give the children’s residential address on account of the children’s safety with respect to their mother and her partner and not because I am hiding from the Court…. ….The children ask me if I will do everything to ensure that they will never live with their mother. The children do not want to be with their mother. They want to live with me. The children are enrolled at a school in the place where we are living, but I will not give the name of the place. It is a single family house, with 4 rooms and is by the sea. I work, I deal with distribution, arranging transport and completion of orders going to England. I live in the locality where we live. The children are not registered, because they are registered at their mother’s address. I am not registered [at this address], because registration is not obligatory. …I am concealing the address where the children are staying from the applicant and not from the court; I do not want to act in breach of the law. I know that the school year starts in 10 days. We will not go back to Lublin, we are supposed to stay in Poland but the children want to live in England. The children shall attend school were we are living now….” In answer to the judge’s request that he state his mobile telephone number, F replied, “Not on your life.”[15]On 27 August 2007, the court ordered F to return the children to M no later than 30 August 2007. He did not comply with this. Although he did not say so specifically to the Polish court, the impression conveyed by F in his evidence on 27 August (designedly so, I am sure) was that he and the boys remained living in Poland. It is not surprising, therefore, that when the children were not returned to M, attempts were made by the Polish court to trace them in Poland. On 13 September 2007, the court decided to conduct an investigation to find out where they were, including causing various enquiries to be made of the authorities in Poland.[16]On 23 September 2007, F wrote to the Polish court alleging that he had contacted M on 31 August 2007 to arrange a date for transferring the children to her. He says in his letter that M told him she only wanted MJ and he could keep J. He says that he was unable to allow the boys to be split and considered himself totally justified in failing to hand over the children. As we know, the boys had been secretly removed to England months before this letter and I am satisfied that the letter was just a further attempt to hoodwink the Polish court. I cannot find the relevant Polish documents in the bundle but I am told that F also appealed against the order to hand over the children but, once again, his appeal was unsuccessful.[17]On 14 December 2007, M laid an information with the local Public Prosecutor’s Office in Lublin, alleging that F had committed offences by unlawfully detaining the children in contravention of a Polish court order entrusting them to her and failing to comply with the statutory obligation to provide schooling for J since April 2007. The details of the situation in relation to criminal charges against F are confused but it does seem tolerably clear that there are criminal charges of some kind pending against him. One aspect of the charges seems to relate to his alleged physical and mental abuse of M over a period between an unspecified time in 2003 (when they were still together) and (puzzlingly, because the document amending the charge is dated 25 March 2008 and it is, even now, only 20 August 2008) 28 September 2008. Part of the conduct referred to is of the kind that might in this country be categorised as domestic abuse. There is also mention of mentally abusing M and the children “by hiding the children from their mother and preventing them from contacting one another.” On 25 April 2008, an application was made by an “assistant judge” at the Regional Prosecution in Lublin for the temporary detention of F for a period of 14 days in relation to all the matters set out in the charge document of 25 March 2008. On 30 April 2008, the Regional Court in Lublin ordered F’s temporary detention for 14 days. The grounds for that order refer to F’s whereabouts being unknown and record that attempts to find him so far have yielded no results. F had 7 days to object to the decision but, of course, did not. An arrest warrant was issued in relation to him on 12 May 2008. There is no reason to suppose that that warrant is anything other than extant.[18]The Polish court proceedings in relation to the children are still pending. Only interim orders have been made so far. There is a certificate from the court, dated 30 July 2008, in which the court sets out that the opinion of the Family Diagnostic and Consulting Centre in Lublin is crucial to the case. It is recorded that the first examination arranged failed because F and the children did not appear. The files have been referred back to the experts for a new date to be set. F had applied for an alternative assessment to be carried out on the basis that the Diagnostic Centre is not impartial because it is near to where M and her friend, Mr Kruk, work and friends of M and Mr Kruk are employed at the Diagnostic Centre; that application was rejected by the Polish court on 27 June 2008.[19]Meanwhile, in addition to the efforts of the Polish authorities, M was continuing her own search for the children. She says in her affidavit for these proceedings that she suspected that F may have taken the children to England but did not know how he would be able to do that without their passports. She began to look at internet sites connected to the Polish community in Reading where F’s sister lives. In May 2008, she found a website of a Polish church in Reading which announced J’s first holy communion. She continued to check the site and, on 15 June 2008, found photographs of J receiving his first communion. This was the first evidence she had had of the children’s whereabouts. She immediately took steps to launch her Hague application.[20]There is no evidence that M in fact knew where the children were any sooner than she describes in her affidavit. However, Miss Ball QC submits that M should have known much earlier where the children were. She points to the fact that although F declined in both his affidavits for the first Hague proceedings to give his address in England, he actually exhibited to them documents from the children’s Reading schools and a letter with his home address on it. She submits that notwithstanding the impression F was giving in the Polish proceedings, exemplified by the evidence he gave on 23 August 2007, that he and the children remained in Poland, and notwithstanding the cancellation of the children’s passports, M should have concluded from her own knowledge of the type of person F was and from his repeatedly declared wish to have the children to live with him in England that he may well have gone to England already with them. She argues that had M looked for the family in England as soon as her contact with the children ceased, she would have been able to trace the children promptly, without difficulty, using the information available from the previous proceedings. This is a profoundly unattractive submission. Boiled down, it amounts to an argument that M should have seen past F’s lies and realised that he would be prepared and able to deceive the immigration authorities and bring the children to England without valid passports and that she should, accordingly, be fixed with early knowledge of the whereabouts of the children for the purposes of Article 10 of Brussels IIR (the provision in relation to which this argument was developed). I do not accept this. The documentation makes clear that M and the Polish court and other Polish authorities were actively searching for F and the children and I do not consider that it can be said that M should have known their whereabouts any sooner than she did.[21]Having learned on 15 June 2008 that the children were in the Reading area, M issued these second Hague proceedings on 9 July 2008. She obtained a collection order which was executed in the middle of the night on 12 July 2008, the children being taken from F’s care and placed with foster carers. The matter came back to this court on 15 July 2008, when Hedley J made an order that the children should have 21 days staying contact with M. Each parent was to be allowed telephone contact with the children when they were with the other parent. M collected the children on 16 July. She says they were delighted to see her and they hugged. They went to stay at the house of a friend of hers. She says that they had a wonderful time and it was clear the boys had missed her immensely. They wanted to be with her to the extent that they all slept together in a king size bed, although another bed was also available. M’s own perception of the boys’ relationship with her is borne out by the guardian’s observation that the children engaged with M happily and warmly.[22]M says that the boys asked her on numerous occasions when they would be going back to Poland, although less so towards the end of the visit after their father had told them they would not be able to spend as much time playing on the computer if they went to Poland, that the shops and toys are not as nice, and that they would have to do homework and study much harder. M noticed that there was quite a lot of conflict between the boys. She says that J said to her that he would come back to Poland with her and MJ could stay in England with his dad. Her impression was that the children appeared to be quite distracted and nervous and J was worried about his future because of what his father had told him about Poland.[23]The guardian has carried out enquiries within the remit set by Hedley J i.e. in order to report on whether the children are settled in their new environment and whether they object to being returned to Poland and if so, whether they have attained sufficient understanding and maturity for the court to take into account their views. The guardian’s enquiries have included seeing the parties and the boys. She has seen a considerable amount of material from the children’s school but not been able to speak to the teachers because it is the holidays.[24]On 30 July 2008, the guardian saw the boys with M at the home at which they were staying. They were brought to the office at the end of the staying contact to spend some more time with the guardian and then to be handed over to F. The guardian saw them at F’s home on 7 August 2008 and spoke with them and their father together.[25]When the guardian first met the boys, they both said in front of M that they preferred to live in England. The guardian reports that M told her that when she first picked up the children from the foster placement, J said he wanted to return to Poland with her and said he would be pleased to leave his brother with his father in England. Miss Ball QC draws attention to the fact that this information is not repeated in M’s affidavit as one would expect it to be. Given the summary nature of the proceedings, there was no opportunity for this possible discrepancy to be explored in oral evidence but it seemed to me that if it was a discrepancy at all, it was not a significant one because the affidavit includes a passage along very similar lines (the import of which I have already referred to above) which is as follows:
“J has actually said to me, during our contact, that he would come back to Poland with me and that MJ can stay in England with his dad.”
[26]The guardian reports that during the hour he spent with her and MJ at the office, J’s wish to be with his father was overwhelming and he looked out of the window several times to see if he could see him outside and watched the time moving towards the time he would be picked up by F. F knew that the boys would be meeting the guardian at 11 a.m.. He was due to collect them after the meeting but he was there outside the office before it and met the boys and handed them some toys. The guardian asked him why he had come so early and he said he had been given a lift by a neighbour who works in London. The guardian concluded that F was intending to make an impact on the boys by his presence. Miss Ball QC submits that this conclusion is mistaken. She argues that it is understandable that F should want to see the boys as soon as possible, given that he had not done so since they were removed to foster care in the middle of the night. I do take this into account but also bear in mind that F had had frequent telephone calls with the children during their stay with M. She also submits that F could not have hoped to steal a march by his attendance because he would have known that the boys were obviously going to be accompanied by an adult who would be alive to this possibility and, indeed, they were accompanied by the husband of M’s friend. This is rather simplistic, it seems to me, in that it overlooks the possibility that just seeing F and, as the guardian reports, receiving toys from him, could well have served to reinforce the children’s feelings about him and/or his influence over them. I accept that the guardian’s assessment of F’s motives is justified.[27]MJ found it very difficult to sit still during the meeting at the office with the guardian; J was the one who answered her questions. She attempted to explore, in her meetings with the boys, why it was that they wanted to be in England. She received, loud and clear, the message that that is what they did want and accepted that was genuine but she could find little by way of explanation for it. The children did not seem to want to talk in detail about either their family situation or their life in general. The guardian would have expected them to be more able to engage in conversation about their situation, despite the interview being in English rather than in their first language of Polish. J gave an explanation that revolved around the fact that his savings would buy more computer games in England than in Poland and seems to have the impression that school arrangements would be less palatable in Poland.[28]The guardian’s conclusion about the children’s views on the question of returning to Poland was as follows:
“59. I have found this a very difficult assessment to carry out and although the children have expressed very strong views I am not convinced that they have sufficient understanding of the situation and independence of thought for the court to attach a great deal of weight to their objections. 60. I conclude that the children are expressing a wish to stay with father in England. Their views, however, have been influenced by their knowledge of their father’s intense opinions on the subject, their loyalty to him and their wish not to let him down. I do not think they have arrived at their views through any mature, independent consideration of their circumstances.”
In the body of her report, she says that the lack of explanation for their preference to remain in England suggests more of a wish to be with their father than to be in this country. She expresses her view that there is an indication in an exchange between J and F, over the time F spent on the computer writing things for the court case, that J does not have full understanding of the significance of the decision that has to be made. She points out that the fact that the boys thought they were on holiday in Poland last summer suggests a lack of explanation given to them by F of their situation at that time. On behalf of F, attention is rightly drawn to the difficulty for any parent in providing the right amount of information for a child in that sort of situation, but the point made by the guardian is a rather different one, I think, namely that, for whatever reason, the boys are not fully in the picture with regard to the actions of their parents and the courts in relation to their living arrangements.[29]On the issue of whether the children are settled here, the guardian concluded:
“61. I believe there is some evidence that the children have settled in their new environment, but this needs to be tempered by the fact that during their time here they have been grounded within a Polish culture involving relatives, friends, and the Catholic Church. This suggests their Polish culture remains embedded and important. Although they have been in England for two years I am not aware of their taking part in any other outside activity. I cannot conclude therefore that they have fully settled in England nor that a return to Poland would not be in their best interests.”

Settlement

[30]Article 12, so far as is material, provides:
“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment….”
[31]It being conceded that a period of one year had elapsed from the date of the wrongful removal by the time Hague proceedings were commenced here, it is necessary to consider whether it is demonstrated that the children have now settled in their new environment.[32]As I did very recently in the case of F v M and N (Abduction: Acquiescence: Settlement) [2008] EWHC 1525 (Fam) which has been cited to me, I have endeavoured to take as simple a view of the concept of settlement as is permitted by the existing authorities by which I am bound.[33]It is to Cannon v Cannon [2004] EWCA Civ 1330 (reported at [2005] 1 FLR 169) in the Court of Appeal that reference must first be made on this question although, in my view, Cannon cannot be read in isolation from the more recent House of Lords authority of Re M (FC) and another (FC) (Children)(FC) [2007] UKHL 55 albeit that Re M dealt not with the question of whether a child is settled but with the question of what happens if settlement is established.[34]Cannon makes clear that each case must be considered on its own facts when it comes to considering whether the child is settled. Thorpe LJ says in paragraph 53:
“A broad and purposive construction of what amounts to ‘settled in its new environment’ will properly reflect the facts of each case, including the very important factor of concealment or subterfuge that has caused or contributed to the asserted delay.”
[35]Thorpe LJ draws a parallel between the assertion that a child has become settled in a new environment and our case-law regarding the acquisition of habitual residence. He cites the decision in Puttick v AG and Another [1980] to the effect that a fugitive from foreign justice will not acquire habitual residence here simply by relying on a time during which he has outwitted authority. This must be seen in the light of the decision of the House of Lords in Mark v Mark [2005] UKHL 42 some months later which made clear that habitual residence can in some circumstances (in that case for the purpose of founding jurisdiction in relation to a divorce petition) be established where the residence in question is not lawful although the legality of the residence might possibly be relevant in answering the factual question of whether the residence was habitual. Baroness Hale contrasts the situation of someone who was on the run after a deportation order or removal directions who might find it hard to establish habitual residence with that of a person who remains here living an ordinary life despite having no permission to be here.[36]Thorpe LJ remarks in Cannon upon the fact that the fugitive from justice is always alert for any sign that the pursuers are closing in and in a state of mental and physical readiness to move on before arrest. The proper interpretation of settlement, in his view, is that it has two elements, the physical and the emotional. A very young child takes its emotional and psychological state in large measure from its carer; an older child will be consciously or unconsciously enmeshed in the carer’s web of deceit and subterfuge. Thorpe LJ said:
“In cases of concealment and subterfuge, the burden of establishing the necessary elements of emotional and psychological settlement is much increased. The judges in the Family Division should not apply a rigid rule of disregard [of the period during which whereabouts of the child have been concealed] but they should look critically at any alleged settlement that is built on concealment and deceit especially if the defendant is a fugitive from criminal justice.”
[37]I hope I have been careful not to fall into the trap of allowing myself to be inappropriately influenced by the fact that F has behaved in a way which is open to considerable criticism and has not served the interests of the children. My task is to look objectively at the whole picture and to determine whether or not, on the facts of this case, settlement has been established. As Miss Ball QC submits, as it is no longer possible to secure the swift return of the children envisaged by the Convention, this exercise involves a rather more child focussed consideration than is often the case in a Hague application. The words of Baroness Hale at paragraph 52 in Re M are to the point, albeit that her comments were made in the context of a consideration of what is a slightly later stage in proceedings when the court decides how its discretion should be exercised once settlement has been found. She remarked on the considerable time that had elapsed before the father in that case commenced proceedings and said:
“What were the children to do during all this time? They settled down and got on with making their lives here, where they are happy and have become fully integrated in their local church and schools. They feel fully settled here whatever the courts may think. Their views have changed from wanting to go home to objecting to this further disruption in their short lives.”
[38]F says in his affidavit for these proceedings that, “the children and I moved to England on the 11th July 2006 but had to return to Poland following a Hague Convention hearing in the Royal Courts of Justice on the 5th March 2007”. This is a misdescription of a type which does not surprise me in the least, given what is known about what F has seen fit to tell the Polish courts. The children came for a holiday on 11 July 2006 and F wrongfully retained them here so, in no sense can it properly be said that they “moved” here on 11 July 2006. Nor did F move here then; he had been here from February of the previous year for his own purposes. In so far as F seeks to convey the impression that the children have had a seamless period of residence in this country of over two years, commencing on 11 July 2006, punctuated only by a “holiday” in Poland during the early summer of 2007, he is significantly misstating the case. In my view, the reality is that the children came here in July 2006 and stayed, wrongfully, until they were returned at the end of March 2007 pursuant to this court’s order. There followed a gap of just over 2 months in their English schooling and their life in this country, and then they were subjected to a further wrongful removal from Poland. Their contact with M, which had been resumed on their return to Poland, was cut off again and they heard nothing from her until these second Hague proceedings were begun again. Whatever he says about the supposed dangers that M and Mr Kruk pose to the children, F concedes the children had enjoyed M’s visits whilst they were in Poland and the evidence indicates that they have enjoyed their time with her now that they have been able to see her again pursuant to Hedley J’s order. There is no doubt that it will have been damaging to them to have been deprived of contact in the interim.[39]F has known throughout that his removal of the children from Poland in June 2007 was wrong. He says so in his affidavit. When he was asked by the guardian about the experience of the police coming to his door in the middle of the night to collect the children, he explained that he had been waiting for the day when the police officers would arrive because he knew he had done something wrong. As the guardian says, this does not suggest a relaxed, settled, state of mind on the part of F. No doubt his anxiety was all the more because he already knew, from first hand experience, of the powers of the English authorities in Hague cases. He was also obviously acutely aware of the Polish proceedings, which he repeatedly attempted to turn to his own advantage. He knew that there was a Polish order for M to have the interim residence of the children and that he was in breach of it. He knew he had brought the children to England on cancelled passports. He says he has only just learned of the Polish arrest warrant that has been issued, but he cannot have been in any doubt that some action on the part of the Polish authorities was likely.[40]The point is validly made on F’s behalf that it does not follow from the fact that a parent is in a vulnerable and watchful state of mind that the children have been unable to settle into their new environment. In this case, however, there are a number of features concerning the children themselves which influence me in my determination that settlement has not been established, notwithstanding the links that the family has made with their local area in this country, to which I shall return later.[41]There is evidence, not least from the guardian, that the children have been caught up in their father’s thinking about the issue of their future. The comment reported by F to the guardian about J’s question as to why he was always so busy on the computer writing things for the court case shows J’s awareness of the court proceedings. His suggestion to his father that no one ever read what he wrote so he might as well send blank pieces of paper, echoes F’s complaint, in relation to the Polish courts, that the judges have not read the papers and suggests to me that J has become aware of rather more than just the simple existence of the court proceedings. F’s own affidavit invites attention to examples of the children’s artwork which he says show that the children are worried about having to return to their mother’s care. This underlines their awareness that their situation is far from settled and I have no doubt that they are very conscious that the issue of which parent they live with and in which country remains a live one. In this regard, I note the comment of the children to the CAFCASS reporter in the first Hague proceedings that they did not want to see their mother as she would do anything to keep them in Poland, which shows that even then they were aware of the insecurity of the situation. Furthermore, I accept the guardian’s evidence that they have been subjected to influence from F which has led to them putting forward an extreme but unreasoned preference to remain in England and with him. This sort of influence, including F’s appearance just before the boys met the guardian at her office, is hardly consistent with a climate in which the children could be expected to settle into a normal pattern of life in this country.[42]I accept M’s evidence that J suggested he could return to Poland with her whilst MJ remained here. This undermines what otherwise appeared to be a consistent preference to stay in England with F and shows that, whatever his preferences, J, at least, is not wholly committed to his life here.[43]I take into account that the children have done well enough in school here and learned to function adequately in English, although it is interesting to see that Miss Ball, in her written submission, calls into question their meeting with the guardian on the basis that it was not conducted in Polish. It is clearly material that J has been in the same school throughout and MJ since last autumn and that their accommodation has been stable, although I note from the guardian’s report that there will be a change now because their aunt has moved out of her flat so will not be involved in their lives in the same way in future. It is also material that they have made friends here and joined in the local community, albeit with something of a Polish slant, and enjoyed the local recreational possibilities. I note all of the matters listed by Miss Ball in her written submission at paragraph 10, including, in so far as it is of significance, the boys’ indication that they would support England rather than Poland in a football match between the two countries. Even taking all these matters into account, however, when one looks at all the circumstances of the case, it is not established, in my view, that these children have settled in this country within the meaning of Article 12. It follows that unless the children’s objections deflect me from that course, I must order that they return to Poland. No discretion arises in this regard.

Children’s objections

[44]So far as is material, Article 13 provides:
“The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”
[45]No one suggests that I should make an order separating the children and accordingly I have addressed the issue of their objections on the basis that whatever order I make will relate to both of them.[46]I must first ask whether these children in fact object to being returned to Poland. The guardian’s report, which I accept, is very helpful on this point and generally in relation to the question of the children’s objections. Much of the evidence is to the effect that J and MJ want to stay in England with F. On the other hand, I have accepted that J told his mother he was prepared to go back to Poland with her, leaving MJ here. Furthermore, the evidence suggests that the children’s actual wish is to remain with their father who is in England and there is very little to support the idea that they have a real objection to returning to Poland as a country. If they do have an objection to returning to Poland, I must consider the impact of their age and their degree of maturity. It was plainly right that a guardian should have been instructed to ascertain what she could about their views but both children, and MJ particularly, are very much at the younger end of those children whose views may be material. The guardian was surprised to find them more unforthcoming about their situation than would normally be expected at their age. There is no doubt of the considerable influence of their father upon their views. His approach to them in this regard will have prevented them from maturing in the normal way, at least in relation to their feelings about their future and possibly, I fear, in other ways too. In these circumstances, whilst I obviously acknowledge that for the vast majority of the time, they have said they want to live in England with their father rather than returning to Poland, in my judgment no weight can appropriately be given to those views in determining whether the children should be returned to Poland.

Conclusions

[47]F’s case under both Article 12 and Article 13 not having been established, it follows that there must be an order for the children to return to Poland.[48]I do not propose to deal other than very briefly with Miss Ball’s submissions on Article 10 of Brussels IIR in relation to jurisdiction, which she argues has transferred to the English court. Under that Article, the Polish courts retain their jurisdiction in a child abduction case unless various conditions are met. In this case, F relies on the provision which comes into play where, inter alia, the child has resided in another Member State for a period of at least one year after the person having rights of custody has had or should have had knowledge of the whereabouts of the child. M has not had knowledge of the children’s whereabouts for the requisite period and nor should she have had that knowledge. I have set out above why it is that I reject F’s argument that she should have found out sooner. It follows that jurisdiction in this case remains with the Polish courts who are, of course, in the middle of their consideration of the matter. OoooOOOOoooo

Cited in 1 later judgment