TJ v MS (Article 11(6-8) BIIA: Relocation: Art 24 EUCFR) [2017] EWHC 3802 (Fam)

Case No Incorporating:Margaret Wort & CoWB Gurney & SonsRef. FD17P00156[2017] EWHC 3802 (Fam)IN THE HIGH COURT OF JUSTICE - FAMILY DIVISIONVenue Royal Courts of Justice, Strand, LondonDate 15 th November 2017
Before
MR JUSTICE WILLIAMS
Between
TJClaimantMS (Article 11(6-8) BIIA: Relocation: Art 24 EUCFR)DefendantIN THE MATTER OFTJ (Applicant)- v -MS (Respondent)(Article 11(6-8) BIIA: Relocation: Art 24 EUCFR)
Transcribed from the official recording byAUSCRIPT LIMITEDCentral Court, Suite 303, 25 Southampton Buildings, London WC2A 1ALTel No: 0203 3709 8928 Email: uk.transcripts@auscript.comWe hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
MR EDWARDS appeared on behalf of the ApplicantMISS GUHA appeared on behalf of the Respondent
JUDGMENTIf this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights reserved.
[1]I am concerned today with a little girl H who was born on the [a date in] 2016. The applicant in this case is her father, TJ, who is represented today by Mr Edwards. Her mother, who is the respondent to the application, is RD, who is represented by Miss Guha. The father has been present in court over the last three days in person. RD has attended by video link which has worked surprisingly well.[2]The application which I am dealing with is an application issued by the father on the 17th of March 2017 which seeks wardship in respect of H and an investigation of custody under Article 11(6) - (8) of EC Regulation 2201/2003, otherwise known as the ‘second bite of the cherry’ article.[3]In the context of the case as it has come before me, that application amounts to an application, in effect cross-applications by each party for final determination of the arrangements for which country H should live in and the relationship she should have with each of her parents.

Background

[4]H was born in England in [a date in] 2016. On the 29th of July 2016 the mother and H travelled to Poland for a couple of months as the family had bought a house in England and it needed refurbishing.[5]On the 24th of August the mother wrote a very frank letter to the father about how she felt about him and telling him that he needed to change. It was not received well and the relationship between the parties steadily deteriorated. The words 'it is over' may have been exchanged in late August.[6]In September the mother declined to take H on a pre-arranged trip to see the paternal family and the father in Prague. The father visited H in Poland briefly. He was insisting that the mother bring H home. She was saying that she wouldn't bring H home until the house was renovated and pointing out that their relationship was over anyway.[7]The father set a deadline for their return and purchased tickets. They didn't come back.[8]The mother consulted lawyers in Poland. The father sought advice in England; I am not sure whether it was from lawyers or not. The net result was that on the 31st of October 2016 the mother issued a petition in Poland seeking to restrict the father's parental authority, settling H’s residence with her and providing for supervised contact one day per month for the father to be supervised by the mother.[9]On the same day the father completed a Hague Convention application form and on the 8th of December that was issued in Poland and it was determined quite promptly on the 23rd of January 2017 and the application was refused on the basis of Article 13(b), namely that there was a grave risk of harm or that H would be exposed to an otherwise intolerable situation if returned.[10]The father appealed that decision. In the meantime he also issued this application on the 17th of March. Article 11(6) to (8) had been engaged because the non-return was pursuant to Article 13 and the father's appeal was eventually dismissed on the 19th of May leaving this application live. I shall turn to the proceedings which have taken place in Poland later.[11]Essentially the court must determine these cross-applications, (not issued but requested of this court,) to determine where H will live, with whom she will live and what time she will spend with the other parent. Those decisions are paramount welfare based and will need to take account of the Welfare Checklist. They require a holistic approach mandated essentially by Section 1 of the Children Act and relocation cases in which the options of H living in England with her mother and spending time with or living also with the father and the option of H living in Poland with the mother and spending time with the father in Poland and eventually England are evaluated to see which of the two would best promote H welfare.[12]If the father's proposal is preferred, that would lead naturally to an order for H’s return which would be automatically enforceable in Poland under an Annex IV Certificate. That would result in mother and H returning to England if they didn't come voluntarily.[13]If the mother's proposal is to be preferred an order would follow permitting the mother to retain H in Poland in tandem with a contact order setting out the arrangements for H relationship with her father. In that event jurisdiction over H would shift to Poland as a consequence of Articles 9 and 10(b)(iv) of the EC Regulation. This court would retain jurisdiction for up to three months to deal with contact issues but no more.[14]An alternative which I raised but subsequently have discarded was the possibility of making an interim order in relation to H remaining in Poland. I suppose conceivably one could also think about an interim order requiring her return with it being reviewed but it seems to me and consistent with what the parties I think both want is a greater degree of certainty and so I haven’t pursued those two possibilities further. It seems likely that further consideration will have to be given within the next six months to a year as to the future progression of contact, whether jurisdiction ultimately lies in England or in Poland.[15]Within those principal, or that principal issue of the competing options, of course there are a host of other factual issues and evaluative disputes. The principal among those issues in the context of this case, although no one of them is determinative on its own, are these.(a) Will the mother be so adversely affected by an order for return that emotionally she would be unable to function, or would be so seriously undermined that H’s welfare would be seriously compromised and any benefits to her of the resumed relationship with her father would be outweighed by the detriment to her caused by the mother's collapse? This is the mother's, or a principal limb of the mother's case and Mr Walker, the Cafcass officer's recommendation is based, to a significant extent, on the premise that the mother would suffer such a collapse. That issue in turn requires an assessment of the medical evidence, the evidence about the situation in England before the mother left and the evidence about what would confront the mother on a return.(b) The second significant issue is if H remains in Poland will it be possible to sustain a meaningful relationship between the father and H or will the relationship be terminated or so reduced by the mother's attitude and her family's attitude to the father, or the practicalities, that effectively H will derive no, or virtually no benefit from her father and her emotional development will be seriously compromised as a result? This issue requires an assessment of the mother's attitude to the father and contact; the likely attitude of the mother's family; the nature and strength of the current relationship between the father and H and its ability to endure through any difficulties and what practically can be managed between Poland and England.(c) Another issue is how settled is H in Poland and to what extent will uprooting her from the life that she has developed over the last 16 months odd have a detrimental impact on her? In particular, in relation to her relationship with her grandparents, in particular her maternal grandmother.(d) Lastly, perhaps of relatively academic interest in one sense is the question of whether I can be satisfied that the criteria in Article 42 of Brussels II(a) are met so as to be able to issue an Annex IV Certificate to set up that unavoidable return of H. The Legal Framework[16]There are two separate but linked legal frameworks I am engaging with. Because H was wrongfully retained in Poland by the mother and the Polish court made a non-return order pursuant to Article 13(b) of the 1980 Hague Convention, Article 11 (6) to (8) of Brussels II(a) is engaged. Article 11 (6) to (8) operates in tandem with Article 10 of Brussels II(a).[17]Article 10 provides that in a case of wrongful removal or retention, the courts of the member state where the child was habitually resident immediately before the wrongful retention shall retain their jurisdiction until the child has acquired a habitual residence in another member state and certain conditions are fulfilled.[18]Article 11 (6) to (8) provides a mechanism by which that retained jurisdiction may be activated following a decision of another member state not to return an abducted child pursuant to Article 13.[19]The jurisdiction thus engaged under Article 11 (6) to (8) in this country is "their jurisdiction" which was based on the habitual residence of the child. Thus, the jurisdiction being deployed is essentially that originating from Article 8 of Brussels II(a), the habitual residence of H prior to her removal. That substantive jurisdiction obviously engages the full range of domestic law relating to the welfare of H.

Article 11 (6) to (8)

[20]Both parties have referred me to the decision of Theis J in D v N and D (By Her Guardian Ad Litem) [2011] 2 FLR 464. I don't think there is any dispute between the parties as to those principles. For completeness' sake they are: (1). the interrelationship of Arts 10 and Arts 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 Art 13 has been made by a State where a request has been under the Hague Convention 1980; (2). proceedings under Art 11(7) should be carried out as quickly as possible (M v T (Abduction: Brussels II Revised, Art 11(7)) at para [8]); (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 [90]; M v T (Abduction: Brussels II Revised, Art 11(7)) at para [17]); (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 (s 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 [17]); (5). it may not be necessary or appropriate to categorise the jurisdictional foundation for such an inquiry 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 Art 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 inquiry under Art 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 [17]; Povse v Alpago); (8). in deciding whether to order a summary return or to carry out a full welfare inquiry, the court exercises a welfare jurisdiction. (M v T (Abduction: Brussels II Revised, Art 11(7) at para [17]). 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[21]As I have mentioned earlier, if this court decides to order the return of the child pursuant to Article 11, the provisions of Articles 40 and 42 of Brussels II take effect which provide that such a judgment would be recognised and enforceable in another member state without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the member state of origin. I can certify the judgment if and only if the child was given an opportunity to be heard unless such was inappropriate, that the parties were given an opportunity to be heard and the court has considered the reasons for and evidence underlying the non-return decision.

Relocation:

[22]Although the issues have come before me in the form of an application for the return of the child from Poland, the parties are agreed that I should essentially be applying the framework within which the court decides relocation cases. The essential task is to weigh up the two competing options. That requires a comparative evaluation.[23]The most recent authoritative decision on the approach to permanent overseas relocation is Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882, [2017] 1 FLR 979. The judgments in that case together with other earlier authorities make clear that the proper approach is as follows:(a) the only authentic principle is the paramount welfare of the child;(b) the implementation of Section 1 (2A) of the Children Act makes clear the heightened scrutiny required of proposals which interfere with the relationship between child and parent;(c) the Welfare Checklist is relevant;(d) the effect of previous guidance in cases such as Payne may be misleading unless viewed in its proper context, which is no more than that it may assist the judge to identify potentially relevant issues;(e) in assessing paramount welfare in international relocation cases the court must carry out a holistic and non-linear comparative evaluation of the plans proposed by each parent;(f) the effect of an international relocation is such that the Article 8 rights of the child are likely to be infringed and the court must conduct a proportionality evaluation.[24]In addition to the Article 8 rights, particularly of the child, I must also factor in the rights of the child to maintain personal relations and direct contact with both parents on a regular basis unless that is contrary to her interests. See Article 9 of the UN Convention on the Rights of the Child and Article 24.3 of the EU Charter. Given the context of this case, both involving a relocation between EU member states but also in the context of the operational or utilisation of Article 11 (6) to (8), the Article 24.3 Charter Rights are clearly engaged and, as the Court of Justice of the European Union has made clear, they're likely to be of particular relevance in abduction situations. See Povse v Alpago Case C-211/10 [2010] 2 FLR 1343 at paragraph 64. “ One of the fundamental rights of the child is the right, set out in Art 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 Detiček v Sgueglia (Case C-403/09) [2010] 1 FLR 1381, para 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 Detiček, para 56).” Litigation History

Litigation History

[25]On the 17th of March the application was issued and the matter came before Russell J for directions on that date. She adjourned the proceedings generally with liberty to restore and directed Cafcass to advise on what role they could fulfil. Cafcass answered that by the letter which appears at D1. Essentially they said they could provide a report to the court but they needed the child back here ideally and noted that there was an outstanding appeal in Poland.[26]On the 14th of July 2017 the matter was restored to court, I believe on the basis that the appeal in Poland had by then been disposed of, and Mostyn J gave directions in particular directing statements which were specifically targeted at a number of issues. At paragraph 4 of his order he set out those issues, which cover both the nature of the assessment that this court was being invited to undertake and proposals for the future child arrangements.[27]On the 8th of September McDonald J gave comprehensive directions, including for judicial liaison, which I think was in relation to the fact that it appeared that there were parallel proceedings ongoing in Poland and to establish why those courts were also considering a welfare case when substantive jurisdiction lay in the UK.[28]An agreement as to contact was reached on that day to include for the first time some unsupervised contact in Poland and subsequently in London; those arrangements being made in tandem with an order that H was to return to the UK so that Cafcass could carry out an assessment and report to the court. The father gave undertakings to the court in relation to H’s return and directions were given as to the filing of evidence and for the mother to attend by video link.[29]The hearing was listed before me for two days on the 13th and 14th of November. As a result of me requiring more reading time than perhaps had been allowed for and other matters it has continued into day 3.[30]I have been provided with a court bundle comprising two lever arch files which contain the statements of the parties; also the judgments from Poland; a transcript of the evidence given to the Polish court; various reports commissioned in Poland and applications and orders deriving from the proceedings the mother instituted in Poland. I have also had very helpful skeletons from Mr Edwards and Miss Guha. I've heard oral evidence from the father, from the mother and from Mr Walker the Cafcass officer and I've heard detailed submissions. The Parties Positions The father's proposal:

The Parties Positions

[31]This summary derives from the father's statements and in part from a document handed in by Mr Edwards setting out the father's current contact proposals. The father proposes that H return to live in England by the beginning of January 2018. His starting point is that the mother and H should be able to occupy the family home if they so wish, that he will pay the mortgage and maintenance. Alternatively, if the mother does not wish to live in the family home he would pay £1,500 for up to six months or the mother finding a job, whichever is the earlier. His case is that it's highly likely that the mother would be able to return to her previous role or a very similar one.[32]He puts forward a phased extension of the time he would spend with H. I am not sure whether that is under the umbrella of a contact or 'spend time with' order or a shared live with order. In practical terms on the ground he suggests that upon her return he sees her one weekday for part of the day, I am assuming afternoon or early evening, and each Saturday. That is to continue until April 2018. Thereafter he would see her one weekday and on alternate weekends from Saturday to Sunday, thus introducing overnight stays at that point. In summer 2018 he proposes there be a period of a week during which he would have pretty much daily contact with H, including up to three overnight stays. From September 2018 until February 2019 when H would be three he proposes an extension of the weekend contact to two nights each alternate weekend. From February 2019 he proposes an extension thereafter to three nights, I assume Friday through to Monday. He puts forward a proposal for provision for holidays in the Czech Republic two to three times per annum. He suggests that H would be able to travel to Poland with her mother once a month and proposes that Christmas and Easter holidays are alternated between the parents in Poland and the Czech Republic.[33]His position on a non-return, if H were to remain permanently living in Poland, is not surprisingly less fully fleshed out, but, in essence, he says that if she is to live there he should have contact once per month for two full days unsupervised. He says it can't be more because his leave allowance at work is used up by flying either side of the contact. He proposes that overnight stays be introduced at the same time, in Easter 2018 but on the basis that they would take place at the paternal family home in Prague which is about a three, three and a half hour drive from Żary in southwestern Poland which is where the mother lives with her parents.[34]The father's central points in support of his proposal are essentially these: that he asserts that the mother will not and her family will not support contact in Poland and that it will wither and H will suffer emotional harm as a result of the loss of the relationship with her father, which given that she is not yet two is the loss of a relationship for almost the entirety of her minority.[35]In tandem with that, he says that the mother's mental health is not as precarious as she suggests and that a return will not substantially diminish the mother's ability to care for H.[36]In relation to the father/daughter relationship and the mother's attitude to contact, Mr Edwards outlined essentially 10 points which I will summarise.(i) That the mother retained H, which has inevitably had an impact on the relationship;(ii) the mother has applied to restrict the father's parental responsibility and has in fact ignored the father's parental responsibility and taken unilateral decisions over H;(iii) within the Hague proceedings she said there should be no contact until H was three or four years old;(iv) in April the mother asserted in court documents that not only was the father abusive but also his family was dysfunctional and there was heavy criticism of the paternal grandmother. In conjunction with that, it's said that the mother has never taken H to the Czech Republic over the 16 months that she has been there.(v) When the Hague proceedings finished the mother resurrected her application of October the 31st in which she was highly critical of the father and sought to restrict his parental responsibility and to restrict contact;(vi) contact in June was very unsatisfactory;(vii) contact in August was similarly unsatisfactory and yet the mother continued to insist on supervision;(viii) in August when she filed her statement the mother's position was that any contact should be subject to professional supervision so that the father could prove his parenting ability;(ix) on the 8th of September in the order the mother shifted and allowed some unsupervised contact. The father believes that was litigation-focussed and that she's not really committed to it.(x) That although there has been contact in England, that the mother is still not committed to it, that she has pursued her proceedings in Poland and that they were only suspended of the court's own motion.[37]In relation to her mental health and the likelihood of a collapse, it's suggested that the totality of the evidence discloses that the position is not as bad as the mother makes out and reference is made to the fact that the mother herself raised the possibility for the first time of in fact moving on from Żary and thus removing herself from the support network that she says is central to her stability and the father submits that the evidence does not suggest a serious underlying problem.

The Mother’s Proposal

[38]The mother's proposal is essentially this: she will live in Żary at her parents' home with H for the next couple of years. She says that H should enter nursery in Poland when she's two and at that point the mother will seek fulltime work as a software developer. She said this might be local or she might commute to a nearby town or city. She said that her package would involve her mother in particular but also generally her family assisting with H’s childcare whilst she is working as is currently the case.[39]She said in a couple of years she might consider moving to Wroclaw as there are more opportunities there; her brother also lives there.[40]She set out her contact proposal at C182. Her proposal is this: that the father should have one weekend her calendar month in Poland from on Saturdays from 1 o'clock until 7 o'clock and from Sundays from 10 o'clock until 4 o'clock.[41]At Christmas this year he should have six hours per day for four days. At Easter 2018 he should have three days, six hours each day in Prague. That weekends should be extended in May 2018 to include an overnight and in summer 2018 there should be a week in Poland to include overnights in one or two night blocks.[42]At Christmas 2018 or Easter 2019 there can be visits to Prague and by summer 2019 there should be a week or so in England with overnights in one or two day blocks. From Christmas 2019 there's a proposal that Christmases should alternate.[43]The mother - well, I think it was the mother, has overnight produced a fantastically detailed schedule colour-coded and with maps and flight times which deals with the question of how contact in practice could be put into effect with the father living in England and H living in Poland. Unfortunately it came in rather late in the day and I've not been able to - to digest it fully. It's clear that there are flights which permit the father to fly on Saturdays and return on Sunday evenings. There are also some flights which would seem to require the father to leave his home at three or 4 o'clock in the morning and then to travel for seven or eight hours before then spending a seven hour contact with H, which doesn't strike me as appropriate.[44]The mother says that she wants an end to litigation in England and in Poland. The mirror for her, as for the father, is a rather unformed, indeed significantly unformed proposal as to what would happen if she lives in England. Essentially she says that she would not find it easy to obtain work, that she couldn't walk into employment. She says she wouldn't live in the family home as it holds unhappy memories for her. She thinks she would require maintenance of around £1,700 per calendar month to rent a house and provide for her and H’s needs. She was concerned about eligibility for healthcare and she was concerned about the consequences of Brexit. She wanted to minimise any involvement with the father and would oppose any form of shared care arrangement.[45]In terms of the actual contact that she's proposing if H was living here, I think her position was that it was largely similar to that which she ssaid would take place in Poland given H age, although I think she might have contemplated there could be alternate weekends if there was a return.[46]She doesn't oppose a review of the arrangements in a year.[47]The reasons why she says that she cannot return to England and why it would be in H’s best interest to remain in Poland are that she says the entirety of the evidence, in particular from the Polish proceedings, including the evidence of the psychological assessment and the other welfare assessments, together with the evidence I think from her family, show that she is highly vulnerable to a collapse if she were to have to return to England.[48]I note at this point that it was the mother's position before the Polish court that she would not return to England even if the court ordered H return; that is not her position now. She said in evidence and I absolutely believe her, that she could not for a moment contemplate being separated from H. The only surprising thing about that statement is that it was not the way the case was put before the Polish court.[49]The mother refers to a number of documents which set out her description of life with the father before she left for Poland at C8, C102, E245. Her description of life in some of those documents makes sad reading. She describes an abusive and unhappy relationship, that she was afraid of the father, that she felt belittled and humiliated, that he was argumentative and moody, aggressive and rude to her and her family, that he was uninterested in H and that he put H at risk. She says his behaviour really changed her as a person. With rare exception she describes the father in highly negative terms with really no, or almost no positives about her relationship or the situation. In evidence she was able to find some positives but very limited in extent.[50]She told the Polish psychological assessment team, that it was only after she saw a psychologist in Poland that she realised her relationship was abusive and that she should leave.[51]The email that she wrote to the father at E12 which is relied on puts forward a more balanced picture perhaps although it's still highly critical of the father but it does say that there are aspects of the father which she thought were good and wanted to work with him "to give us a chance".[52]Miss Guha says that really if one looks at that background and all of the evidence which supports the mother's case in relation to the nature of the relationship, that it would be wrong to suggest that the mother's potential breakdown would be fanciful. She says the father's own account of the mother's psychological fragility is a worrying one. He suggests there were periodic episodes when she was low or depressed. The mother's case is that in England she has no or few close friends and in returning to what would be a chronically uncertain situation the risks to her would be high.[53]The other side of the equation in Poland as it were is that it is said that H is clearly very closely linked to her mother, she is clearly the primary carer and that issues which affect the mother will affect H. Ms Guha says the strength of the relationship between H and the mother is - and the centrality of - of the mother's role is recognised by the father himself in accepting that contact has to be progressed incrementally and in his recognition essentially that his relationship is not strong enough to take it much more quickly.[54]It is said that H is undoubtedly settled in Poland in a physical and family environment where, in particular, her maternal grandparents are an important element of her life.[55]In relation to the mother's attitude to contact, Miss Guha says that the mother does absolutely recognise the father is a pivotal figure and accepts that H has a close and loving attachment to him with a solid foundation and that she is able to express some regret at the limitations which have been imposed on that relationship. She says that her move to accepting unsupervised contact is not as a result of the court process but rather as a result of gaining insight into the capability of the father and that she should be given significant credit for this. That her position has consistently been to offer contact in Poland. That she has not stood in the way of contact but has invited the father to come to Poland. She says that she doesn't believe that the father really thinks that she will exclude or marginalise him.

Chronology and Detailed Background

[56]Turning now to the history and the detailed background. In this section where I say I am satisfied about something it means insofar as there may be a dispute over a factual matter or where I need to determine a matter of fact, or where I am evaluating an assertion as to risk, if I say I'm satisfied on it that's my conclusion.[57]The father was born on the [a date in] 1985 in the Czech Republic and is now aged 32. He is highly educated and intelligent having achieved a PhD. He works for Jaguar Land Rover and has lived in the UK since 2007.[58]The mother was born on the [a date in] 1985 and so she is 31. She was born in Poland. She studied in Wroclaw, if I am pronouncing it correctly. She moved to England in 2008 after meeting the father at a conference, I think in Poland. She also completed a PhD although did it a year more quickly than the father and since then has been employed as a lecturer at Coventry University in engineering control systems I think.[59]Both of them have expertise which is of considerable relevance to the automotive industry. Both of them self-evidently are highly intelligent.[60]In the course of 2012, as she was completing her PhD, the mother sought medical help from the student welfare service or the general practice associated with that and the father and mother both agree that she had emotional difficulties at this stage. Neither are terribly clear on what actually they were, the mother herself was unable to tell me even what her medication was although it was either antidepressant or possibly anxiety-linked. She saw a counsellor on three occasions and was on the medication for, as she said, a couple of months; the father said I think up to nine months.[61]She subsequently completed her PhD and became employed as a lecturer at Coventry University. In late 2014 the parties became engaged and in 2015 the mother became pregnant with H who was born in [a date in] 2016.[62]The evidence of the parties about their relationship really is about as far apart as can be imagined. The mother says - in fact it was almost her closing piece of evidence but it reflects the general tenor of the rest of her evidence - that the whole of the eight years was terrible. The father in contrast says for the most part it was good.[63]The mother says after H was born the father was distant, uninterested, unsupportive, unpleasant. The father in contrast says that it was a happy time and their child was there. It was hard in respects but they were joyful at the arrival of their child. He said that it's right that they needed help and they called upon the maternal grandmother quite naturally to come and help.[64]At the same time the parties had been in the process of seeking to buy a home. The mother had put in £40,000 of her savings, the father had put in I think £25,000 of his. They got a joint mortgage and it was planned that the father would carry out and fund renovations to the property which I think he said were expected to cost around £20,000.[65]The father says that by June time the mother was feeling low. He would find her crying and he spoke with the maternal grandmother and it was agreed that she should go to Poland for a couple of months whilst the house was renovated and that whilst there she should see a Polish psychologist who it seems the mother's family had some connection with. And so on the 29th of July 2016 the mother and H departed for Poland with the father's full consent.[66]When the mother got to Poland she was unable to see her chosen counsellor but at some point, I am not sure entirely when, saw another psychologist or counsellor on three occasions before the summer recess.[67]I have been provided with a chronology of communications between the parties in August through to November which provides a window into the state of the relationship over this period of time. By the 20th of August the mother was WhatsApping the father, saying that they could go to Prague for two weeks and that she couldn't return with H to a building site, that it wouldn't be good for H, which suggests that the father was asking that they come back before the expiry of the two month period.[68]In the next couple of days there was an argument between the parties about building work, the mother's discussions with the psychologist and the father saying he was horrified by the mother's accusations against him.[69]On the 23rd of August he sent a WhatsApp to the mother saying:
"If you've decided to leave me like a childish coward so be it. Goodbye Gosia, I see no future anymore."
[70]On the 24th of August the mother sent a very long email to the father which must have both been I suppose quite difficult to write and certainly quite difficult to receive, saying that she wanted the father to change the way he behaved, she wants to be with him, she said he must respect her family and stop insulting them. She said that his behaviour has caused her depression and that "you can't blame my parents for it". She said she hoped "we can be a normal family", that there were seven things the father must change, he should seek help and he should come and see them.[71]The correspondence over ensuing days begins to deteriorate. The mother is still saying to the father that he needs to think about what she has said and to start thinking about resolving his issues. She said she wouldn't then go to Prague with him. She invited him to come to Poland.[72]The father was asking to talk with the mother and the mother said that it was too serious a conversation for Skype. They would see - they would speak when they saw each other. She said telephone calls always end in insults, that she has not changed her mind about what was said.[73]In early September there were further exchanges, the mother saying there were options for the father to visit in Poland, the father sticking by the earlier arrangements which was that they should go to the Czech Republic.[74]In the event they didn't go, or the mother and H didn't go to the Czech Republic. There was correspondence about H teething and being unable to travel that far; I suspect underlying it all actually the mother was concerned about whether she would actually be able to get back from the Czech Republic with H if she took her there.[75]On the 16th of September there were further exchanges, the level of hostility rising, the mother saying that the father becomes aggressive and that her family is shocked. The father in turn saying that the mother has twisted everything and that he's not the monster she wants to -make him.[76]As a result of H not going to the Czech Republic the father and his mother travelled to Poland and there is a dispute between the parties as to how that visit went. The mother says the father behaved unacceptably and was rude; the father says that the atmosphere was tense and that despite expecting to be able to talk to the mother about their relationship she was uncommunicative and at that stage he says he was still hoping to reconcile. The mother accused the father of "ignoring us", of ignoring her family, insulting them, shouting at her mother. And in late September further exchanges between the parties simply illustrate the deteriorating relationship, anger and hostility emanating from those documents.[77]The father was, or one gets the impression that the father was still hoping that the mother would return to England and was suggesting that they have couples therapy. The mother was saying:
"What's the point in coming back? We can't live under the same roof."
The father was saying:
"The renovation is nearly completed. When will you come back?"
And he, as I have already mentioned, then booked tickets for them to come back. The mother wouldn't explicitly say that she wouldn't come back but she kept referring to the state of the house not being fit for a child and then by the end of October the father was saying that his decision on his course of action was final, he would negotiate one further week's delay but the following Friday was the deadline and on the 28th of October the mother was still saying that the conditions in the house were harmful and "How could you imagine us living together under one roof if we're not together anymore?"[78]Insofar as I can draw much from the exchanges other than that they illustrate a relationship in crisis and breakdown, what does emerge is that the mother certainly was able to confront the father and challenge him, she wasn't afraid to take him on in digital communications and was fairly robust with him.[79]The father was rather petulant at times, somewhat dictatorial in his approach, sometimes quite rude. Overall the mother comes across as somewhat more mature and measured in those exchanges. I interpret part of that being due to the fact that actually she was rather more in control and that this had rather taken the father by surprise. The impression from those communications, particularly in conjunction with the fact that by the 31st of October the mother issued proceedings in Poland, is that the mother had probably decided fairly early on, certainly by the beginning of October, that the relationship was indeed over and that she was not going to return to England and that over the period of October she was in preparation for issuing proceedings in Poland.[80]In contrast, the father I think, certainly originally, thought it was a blip in their relationship which they would get over and to the extent that the communications tell me anything about the prior relationship between the parties, I can only infer that the behaviour and some of the things said by each were not new.[81]As I said, the mother and the father both, paradoxically, given the complete breakdown in their relationship, acted as one in taking steps to secure their positions with on the 31st of October the father applying to the ICACU under the Hague and on the 31st of October the mother issuing her application for full parental authority and seeking to restrict the father's parental responsibility to issues of serious illness and educational direction.[82]The contact proposed by the mother was eight hours in the mother's residence once per month under her supervision. The document at E1 which sets out the mother's case is a wholesale indictment of the father as a father and as a partner. The criticisms of him ranged far and wide from being aggressive, exploitative, lazy, racist, rude, dismissive and reckless in relation to the care of H.[83]The emails or other exchanges between the parties thereafter to some extent reflect what the mother had said in that application, although much of it was focussed on who actually had ended the relationship and when rather than on anything else. The father said that he thought the mother needed urgent psychological help, that he wanted to have a proper discussion about their separation and insisting on H return to England; the mother repeating her allegations of abuse and saying that the father had really spent very little time with H.[84]It's right that the mother over this period was suggesting to the father that he should come to Poland and it's equally right that the father didn't go to Poland until December. In the context of Hague Convention proceedings being underway I understand both why the mother was inviting the father and the father was not willing at that stage to go but by the 27th of December the father had travelled to Poland and had some contact just after Christmas. At this stage H was only 10 months old but both of the parents describe that visit as being tense and stressful with the adults shouting and H crying.[85]On the 29th of December the mother's application to the Polish court was suspended as a result of the Hague proceedings being ongoing.[86]On the 12th of January the mother, father and H were seen by a Polish court assessment team. I think this must have been directed in the context of the mother's application rather than the Hague application and I shall turn to the report shortly.[87]On the 23rd of January the Polish court heard the Hague Convention application and refused to return H. The judgment of the court is in the papers. Some relevant extracts from it which illustrate the basis of it are these. The court said that:
"It is the court's view that the primary fact to accept the grave risk of harm is the baby's age. The return of the child in this situation would lead to a greatly adverse situation of isolating the baby from the mother. Also it would make it necessary to employ a nanny for the baby, to give up work or to give up work by the applicant's mother in the Czech Republic and move to England. At the same time it is impossible to demand from the mother and the minor to return now. The relationship broke down. Ending the conflict is a necessary element."
[88]It's not clear from the judgment that the Polish court considered any protective measures, in particular that the mother and H would not be returning to live with the father but to live alone in the family home. It seems to have proceeded on the assumption that H would have to return to live with the father because the mother was saying she would not return even if H was ordered to return, or that the mother and H would have to return to live with the father. That is an unfortunate assumption given that it seems quite clear that that wasn't the intention of the father or his proposal. And I have to say frankly that I don't accept that had the Polish court ordered H’s return that the mother would not have accompanied her. I am absolutely sure that the bond between the mother and H was such that she absolutely would have gone with her.[89]Following the issuing of that decision, the father appealed. And whilst that appeal was outstanding the psychological report arising from their meeting on the 12th of January came in. That report deals with the father, the mother and with H. Relevant extracts, the salient points are these.(a) In respect of the father the psychologist concluded that he had a tendency to analyse events in detail; to look for arguments for decisions already made; that he was of average emotional sensitivity and reactivity; he had a low threshold of mental endurance and difficulties processing adversity; in difficult situations he may react with fear, petulance or a tendency to abandon action. He maintains continuity and the value of the past and in coping with new or difficult situations he may demonstrate problems connected with mental endurance.(b) In respect of the mother they concluded that she was highly emotionally sensitive; she had a tendency to react fearfully to new and stressful situations; she was currently focussed on her own mental safety and well-being; she negates the value of the past and focusses on the current; she idealises, the present position in her life. Emotionally she is strongly connected to her family. When dealing with difficult, new situations she may have problems maintaining a positive outlook as well as active involvement. It may indicate a current period of crisis caused by a difficult process of adaptation to new conditions. It also indicates a submissive attitude to important people: her partner, her parents, her brother.(c) In their conclusion, they said that the parents each have intellectual competence to perform parental functions. Both are similar and prefer safe and predictable situations. The mother has a tendency to be submissive to important persons and a tendency to low mood. The father is emotionally labile and can be petulant and tense. The mother does not on her own guarantee the child's needs will be met; that's only guaranteed with the support of family. And they noted that long-term separation for the child from either the mother or father can result in long-lasting adverse developmental issues.[90]On the 17th of March this application was issued. On the 28th of March the mother commenced psychotherapy. On the 1st of April the father, the paternal grandmother and a friend travelled to Poland for contact. Allegations were made both ways and it seemed the father made a film of that visit.[91]On the 19th of May the father's appeal came on before the Polish appellate court. Relevant extracts from that decision are these. " The special relationship between the mother and the minor makes it impossible for the child's separation from the mother; a sudden return to the father's place of residence may cause adaption problems. "It is the appellate court's opinion that the mother cannot be forced to return together with the child and without her the development of such a small child would be seriously disturbed and the reality is that if she were returned she would be deprived of the care of the mother."[92]The court had access to the psychology report I think by this stage because there are extracts which refer to the evidence about the mother's resilience being relevant to the capability of the mother and could not be ignored.[93]On the 10th of June there was further contact. The father alleges that the maternal family were bad-mouthing him in public whilst he shielded H. This visit, I think, is the provenance of the video with the maternal grandmother saying she would call the police.[94]On the 7th of July the Polish court restored the mother's welfare application, referring back to the application to limit parental responsibility, supervision of contract and settling the child's residence with her.[95]In July there was further contact, during which it seems there was filming.[96]On the 8th of August the mother's psychotherapist provided a report, which said that she was having weekly psychotherapy, working on extending her self-insight and personal development and saying that disruption of the process would be unhelpful. That psychotherapist report does not suggest that the mother is having counselling or treatment for depression or post-traumatic stress or anxiety, but is focused on, as I said, self-insight and personal development.[97]On the 13th of August there was contact. There's an alleged incident where the maternal grandmother intervened during the contact and took H away. The police were called. Photos show the maternal grandmother taking H while the paternal grandmother holds her head in her hands and there's somebody videoing the father, I think, the mother said was a cousin.[98]On the 18th of August the mother signed her statement in which she sought supervision of contact by an independent professional. The mother says that by this stage she had concluded that her family and others could not, or should not, be involved.[99]Thereafter, on the 12th of October the district court in Żary suspended the mother's proceedings. That may or may not have been as a result of the communication between the Head of International Family Justice with the Polish Hague Network Judge. The mother's initial position was that she appealed that in order to seek to progress her proceedings against the father in Poland, but subsequently it is said that she has withdrawn that appeal, although there's no documentary confirmation of that being so.[100]In October the respondent did bring H to England and there was contact on, I think, five days. The first two H made the adjustment well and had a good time with her father. On two occasions, I think, she was distressed at the beginning and Mr Walker, in particular, observed a contact at which H was finding it difficult to separate from the mother and go to the father. He was surprised, quite surprised, I think, to see that the mother and father actually worked well together to try to help H settle and that the dynamic he observed between them was a positive one. He described them as being towards the top end of the spectrum of working together, which given the contents of their statements is very surprising and positive.[101]The father suggested that the mother leave H and that he would find it easier to settle her if her mother wasn't there. The mother sensibly accepted that suggestion and thereafter H settled better, albeit Mr Walker noted, a clear distinction in the sort of attachment that H had between her mother, who he has witnessed or had seen the day before with H where H was very happy to go off and explore and was confident that her mother would still be there for her.With her dad she was much more clingy and needed him to be involved in all of the things that she did. Mr Walker wasn't really surprised by that, given that the mother clearly was H primary carer from birth through till July 2016, but more particularly from July 2016 through till October 2017 she had been for periods her sole carer or her primary carer with some support from the maternal grandmother and with the father having almost no role in H care at all, being limited to some brief contact, so that difference was not surprising.[102]What Mr Walker drew from his observations and his involvement with both parents was that both mother and H were closely attached to each other; that H obviously identified with her as the primary carer; that the mother was providing good care for her and that if the mother's stability was seriously compromised that would have a direct and probably significant impact on H. On the other hand he was very favourably impressed with the father's ability to manage H, putting him at the top end of the spectrum of fathers being able to cope with a little child in that rather artificial environment and he was, as I say, favourably impressed by the dynamic between the two; that being unexpected.[103]His conclusions overall were in favour of H remaining in Poland and on exploration in his evidence, it became clear that there were really two quite significant components of that, the most significant being his acceptance that the mother returning to England would have a serious destabilising effect on her ability to care for H and that that would have significant adverse consequences. The second component was that he felt that H was well settled in Poland and that removal from that physical and family environment would be a significant change for her and a loss for her. He felt that H’s need for a relationship with the father could be sustained by contact.[104]On exploration with him it seemed fairly clear that he had not fully appreciated the basis of the Polish court's decision. He, in his report had said that the Polish court's assessment, which he believed was a welfare assessment, was that a return to England for H would create a grave risk of harm for her and he transposed that into his assessment in - thus relying on that in his conclusion that H should remain in Poland, because of the impact on the mother. Given that the Hague court's assessment was, I think, somewhat different to that which Mr Walker believed it to be, one has to examine whether that is a reliable conclusion or not.[105]He said in evidence that if his appreciation or understanding of the likely impact on the mother was overstated and that if the impact on the mother would be less than that which he had assumed that he thought the balance in the case would alter and that in those circumstances H best interests would be in returning to live in England and to the framework that that would provide.[106]My assessment of the father from his written evidence, from his evidence in the Polish proceedings and from his oral evidence, I think demonstrated much that was consistent with the psychological assessment of him in Poland.[107]He comes across as very dogmatic; very sure that he is right; quite emphatic in his beliefs. His evidence, for instance, about the Electra complex and his acceptance of it was an obvious example. He didn't come across as having much capacity to reflect on himself or to question his actions or his responsibility for situations. He didn't seem to me to have much insight into how others might perceive him. He tends to speak, not only quite emphatically and with certainty, but in quite dramatized terms on occasions and so when he describes something as being intimidating or threatening, to others more objective, it might only be assertive or challenging. His description of the maternal grandmother calling the police in his statement on initial reading was quite alarming and on viewing the video it was somewhat less worrying, although still worrying, but the impression was different and the obvious threats to call the police were less intrusive on seeing the video than I had thought when I read his statement.[108]It's clear that his communications with the mother do show petulance and emotional lability. I imagine if he was thwarted he could become cross or frustrated or upset. He tends to stick to his guns and is fairly inflexible, wary of change.[109]I am satisfied that the mother would, in the context of their relationship, have found him rather domineering, because he likes to get his own way and she, in contrast, is rather more submissive and would probably let him get it. Having said that though, his description of their mutual interests and pastimes seems genuine and I've little doubt that they did have good times together, leading to an eight year relationship, engagement, pregnancy, buying a house. I don't believe that the mother, who is a highly intelligent and rational individual would have gone so far down the road if she truly had found him intimidating and abusive from the commencement of their relationship.[110]Although he may be rather domineering and may have tended to be the one who took decisions or pushed his point of view the most, I don't believe it extended to him being coercive or controlling. That's not to say that the mother may not have felt at times that her voice wasn't being heard. Indeed, she may have experienced him as bulldozing what he wanted through, perhaps occasionally feeling somewhat bullied, but not to anything like the degree that the mother now describes him. The core of her description of him now, perhaps, can be seen in the document at E1. There is a significant, for me, disconnect between that document and what she was saying in August in a personal email to him, which certainly is consistent with her, at times, experiencing him as domineering, but not more than that.[111]The father himself was hardly generous in his assessment of the mother and her qualities as a mother and as a woman, although he was able to identify some more positive qualities in her than she did in him.[112]Overall, I found that his evidence was generally more reliable than the mother's. I think one has to apply a discount of sorts because he expresses himself in fairly dramatic terms at times. I thought much of his evidence about his experiences in Poland had a core of truth about them in terms of the comments being made about him, about the attitude within the family generally and in the wider community and comments such as the maternal grandmother saying that they were going to war. I accept that there is a significant core of truth to that. That's no surprise in a sense because the evidence that the maternal family gave to the Hague court was very supportive of the mother and so the mother's case being that the father was pretty much entirely a bad thing, that being accepted by her family is hardly surprising, and that that should make them cross and hostile to the father is hardly surprising. But that presupposes that the mother's account is substantially accurate if it were to have any justification for what they said. Although in the context of contact between the father and H it's difficult to see that there could be any justification at all for introducing tension and conflict into what is supposed to be a pleasant experience for a little girl.[113]In terms of his relationship with H I have no doubt that since day 1 the father has been interested in H and has wanted to play a role in her life. Of course, in the early days after a new baby's arrival there are sometimes periods when fathers can do very little, particularly if the baby is being exclusively breast fed as I think H was. Mothers do the lion's share of the work in those early days and that, I think, was what the mother was doing in this case, but the father was playing a role: shopping, doing chores and otherwise, taking an interest in the mother.[114]The criticisms of the father at E1, in a sense, illustrate that he was doing things with H, because the criticism there is of him doing things with her, but doing them badly: holding her whilst cooking or working with her on his lap or doing other things and so I'm quite satisfied that he was interested in H from day 1 and has maintained that interest since. That interest and commitment is corroborated by the psychology assessment of him and the assessment of Mr Walker himself.[115]Given he has visited Poland extensively over the last year I've no doubt that that also illustrates his commitment to H. It might be said that's it's somewhat easier for him, given that he comes from that part of Central Europe anyway, but travelling to Poland on a reasonably regular basis into the, as it were, lion's den of the mother's home turf and her family, shows that he has a considerable degree of commitment to his daughter and the interactions that have been observed show he is a capable father. The Skype, the mother's description of the Skype contact itself would support that. The ability to sustain a 20 months' old interest for 15 to 20 minutes over Skype by a variety of devices, such as playing peek-a-boo or drawing a picture or having mutual toys to play with, show a high degree of capacity to engage with a little girl over Skype.[116]The little vignette from the video taken of the grandmother saying that she would call the police if they carried on videoing shows the father feeding H in the grandparents' home and entertaining her in order to persuade her to eat her dinner or lunch, whatever it was. That shows a capable father. It also, perhaps, shows that the maternal attitude to him at times is not quite as hostile as he would describe.[117]It certainly seems that he has the core attributes to develop into a good father, top end as Mr Walker would say. But in order to achieve that level of competence he will, of course, have to play a much fuller role in her life. You can only learn the skills of a parent by actually doing them - reading has only so much value.[118]He will certainly need to exert himself to maintain contact in Poland. So far he has done well but if H remains in Poland he will have to maintain that over a considerable period of time. There is some cause for optimism in that, although the Polish psychological assessment of him suggests that there may come a time when he would lose heart and give up.[119]In relation to the mother, again similarly to the father there are many aspects of her evidence and presentation which reflect the findings of the psychologists. The evidence about her interaction with H is all very positive. She is clearly able to meet her physical needs, I am sure she is able to meet her educational needs, I am sure she is able to meet most or many of her emotional needs. If there is a flaw - and there is a flaw and I think a significant flaw - it is in her attitude to the father still.[120]Her evidence about her relationship with the father but also her life and achievements in England showed an approach which, to use the language of the Polish psychologist, "negated" or "undervalued the past and exaggerated aspects of the past and her own problems". She described her eight year relationship with the father as being terrible all the time with only short moments of happiness. She described working as a lecturer in her chosen area of specialisation, something she obviously valued highly, as being no more than a comfortable shoe which she took because it was easy to do so. I don't accept that this was how she saw it at the time in either case but is a recasting, perhaps subconscious, to fit in with her present view.[121]The report says she focusses on her present and idealises it and this was obvious in her evidence. She describes her life now in very positive terms. Her job is good, although it pays very little and part-clerical/part-IT development, both of which she is vastly over-qualified for. She receives a fraction of her former salary. She says her home life is now happy and fulfilled, albeit she is living at home with her parents in a town she left many years ago to pursue her education, career and relationships.[122]She says, I think sincerely, that her job opportunities in Żary and around are better than in England, when even the limited evidence the father has obtained satisfies me, along with the general economic situation, that the mother would have substantially better prospects in England in whatever role she chose to pursue, whether lecturing in industry in systems control or in software development, than in Poland. I think she can pretty much walk into a lecturing position at a Midlands university with all of the benefits that that employment holds, particularly in terms of holidays and flexible working, but she doesn't see it like that.[123]I regretfully conclude that in many ways the mother is not reliable in her account of the past or her assessment of the future. I doubt that that would hold true in contexts other than this litigation because I have no doubt that she is highly intelligent and highly respected within her field and her professional relationships. But in this case, perhaps with the stakes so high and with her profile or personality as assessed by the Polish psychologist, she, I think, has a tendency to recast events to suppress the truth, that being most obviously exposed when questioned about the taping of contact visits which, after originally saying she couldn't recall doing under some well-aimed cross-examination, she ended up having to concede that in fact she had taped most of them on the advice, on the express advice, it seemed of her Polish lawyer.[124]It was at this point that there was a rare flash of real feeling as the mother obviously felt guilty that she had done this and ended up accepting that she had done it and that they showed nothing bad about the father.[125]I think her evidence also revealed something about her tendency to be what was called submissive in the psychological report, although I am not sure that's really the best word to use, but a tendency to give in, perhaps to avoid conflict or confrontation, allow others to take over. I thought doing what her lawyer advised, even when she felt uncomfortable about it, was one very clear example. I think the other is allowing her family to influence, possibly dictate, the supervision of contact.[126]Even after several disastrous or poor sessions of contact which she frankly accepted were marred by arguments and tension with threats to call the police, she continued to insist on supervision even though she said she had reflected on contact and how it went and how it might be improved. If she did reflect on it, it would have been apparent very early on that the involvement of herself and her family was not helpful and it would be better to find an alternative solution, but she continued to have supervision and I am satisfied that this was at the instigation of her family. Even if the father was abrupt or rude on occasions it does not justify the restriction of or intense supervision of contact; nor does it justify their wholesale adoption of the mother’s criticism of the father. In some cases the extended family may be more objective and able to bridge the gap between warring parents but this case is very far removed from that.[127]In relation to her mother intervening to remove H from a contact, that depicted by the photograph, she really wasn't able to give any explanation at all as to why she didn't say to her mother to put H down and to let them get on with it and I think that is a small but specific example of the mother being unable to hold her own against certain individuals.[128]In relation to the father, when I asked her she found it very hard to say anything positive about him, even now in terms of him as a man, or as a father, although she did make some - there was some limited acceptance after some very considerable period of thought that he may have some qualities. And again, a rare flash of emotion from the mother, that she smiled when talking of how she had been pleased to read of his time with H in the Cafcass report.[129]But that is a very limited sort of insight. She has been seeing the father with H since birth and in contact, so she knows how capable he is and has done for, in reality, for a very long period of time. The mother has seen him, for instance, feeding H and using humour to distract her and get her to eat her lunch; a small thing but a relatively sophisticated thing for an inexperienced parent to do, so she has seen him do that. And she has seen him do all of the things that he has done in Skype; again, relatively sophisticated, which, as I've already said, supports the assessment that the father is towards the top end of the bracket for competence as a father. And yet, despite all of this, the mother still asserted that all the criticism she made of the father in her Polish petition were valid, notwithstanding that she had very shortly before that said to me that perhaps she had been over-anxious.[130]When questioned about why she would have changed tack over the need for supervision - she had said it needed to be professionally supervised to gauge his competence, when as I find she must have known at that point that he was a perfectly competent father - she changed tack on the 8th of September and really was unable to explain what it was about the father's behaviour that led her to that decision.[131]Given her long term insistence on the ground and what I conclude is her ongoing belief in the father's inadequacies, I am satisfied that her change of heart was linked to Cafcass and this forthcoming hearing rather than any real change of heart in herself, still less any change of heart in her family.[132]Overall, the points deployed by Mr Edwards persuade me that the risks to contact in Poland are high, in particular the application to restrict his parental responsibility and limit his contact and the all-encompassing criticism of him which she has not resiled from. She maintained that need for supervised contact until the 8th of September. I accept what Miss Guha says, that she should be given some credit for that. I accept that yes, that her resistance wasn't persisted with until the dying breath but like a very late guilty plea the credit one gets for late acceptance in the face of an almost inevitable court determination is not that great. I think it was tactical rather than genuine.[133]I am also very concerned that she has consistently sought to pursue proceedings in Poland, despite this court having jurisdiction, and the way those proceedings have been pursued. She can't hide behind her Polish lawyers. It may be that the combination of her family and her Polish lawyers has overridden her better judgment and led her to pursue proceedings in a way and to say things which with hindsight she might regret but that's not an adequate explanation because that's what's happened and there is a real risk that if H lives in Poland that that will continue.[134]I said that there was a rare flash of emotion when the mother spoke of seeing the father, or seeing the report of the father and H in the Cafcass report and perhaps - perhaps that is the beginning for the mother of - or perhaps it's the dawn of her realisation that actually the father may have something truly valuable to add to H life. But it is embryonic, it could just as easily go into reverse at this stage I think with an adverse contact or family pressure being put on her.[135]The contents of what was said in the summer and autumn 2016 of the mother valuing a relationship and wanting him involved are in fact inconsistent with what was then said in the application to the court of seeking to restrict parental responsibility and to limit contact and to the decisions that she took, for instance to enter her in a nursery. Offering to supervise the contact herself in her own home I have to say does not sit easily with the parallel assertion that she found the father to be abusive and threatening.[136]Given the father's relationship with H is itself at an early stage of formation given the limited experience H has of the father, I think it would take relatively little to disrupt that relationship. This is not a child of 10 or 12 or 14 who has a deep-rooted and powerful attachment to their parent. H has a limited and I think probably relatively fragile attachment to her father at this stage and any significant period of non-contact or disrupted contact or conflicted contact I think it would be very easy for that link, that attachment, to be seriously undermined and rebuilding it would then prove difficult.[137]Mr Walker's evidence about the likelihood that H would align herself with her mother if contact became associated with conflict is I think correct.[138]I think the Polish psychologist and Mr Walker are clear, and of course I think it accords with general principles, that if contact is seriously disrupted or limited, or worse terminated, that H will herself pay a high price in the medium to long term in terms of emotional harm.[139]A critical issue on the other side in relation to H’s return is that relating to how the mother would respond to coming to live in England again. It's central to Mr Walker's analysis and it's central to mine, albeit not ultimately completely determinative. The evidence about how the mother would respond is clear.[140]As far as I can ascertain, prior to 2012 the mother had not experienced any mental health issues so it's not a long term issue. In 2012 both she and the father, albeit in different degrees speak of her suffering from a period of what seems to be either anxiety or depression linked with the stress of her PhD which she was completing at the time. She said she saw a counsellor three times just before the summer recess but wasn't assisted and didn't resume after the vacation and she said she wasn't seen as a priority case, which suggests that that particular problem was not a major one and she didn't say she had to defer or extend her PhD or anything similar. She took some medication, possibly antidepressant medication. She then completed her PhD and commenced work and didn't require any further medical support for four years.[141]In 2016 she had H, her first baby. As I have said before, the relationship with the father was, I conclude, not an abusive one. Prior to this I think they, as with any couple, they no doubt had theirs ups and downs.[142]After H arrival it was clearly a stressful and anxious time, as well as obviously being delightful. The mother was tired, adapting to being the primary carer of a new-born baby, breastfeeding, was poorly with an infection. This was a massive change for her in contrast to a life which had been spent in academia, functioning at the highest level, interacting with other academics, the change to being focussed on the needs of a tiny baby was I am sure very significant indeed. Many first time mothers and indeed couples struggle to adapt and I have little doubt that the mother and father found it difficult. The accommodation they were in was not great, I think the father described them not having any heating and then when the maternal grandmother arrived quite properly to provide her daughter with support there were four of them living in a small uncomfortable property. The stress of that should not be underestimated.[143]I suspect, having said that, that the father probably did underestimate it from the mother's point of view. Again, not an uncommon feature in fathers of new-born children who get on with their jobs and their lives to some extent while their wife or partner experiences a radical change in their world. I think his tendency - he has a tendency to believe that solutions can be found to every problem, perhaps often from books or from research, may have led him to conclude that all would be fine and I think he probably underestimated the extent to which the mother did need support.[144]But this family then also threw into the mix the second or third most stressful undertaking that a family can embark on after the arrival of their new-born child and that is to buy a new home. And so they found themselves in the position of trying to purchase a property, the original choice having I think been gazumped and been lost, and so that whilst the mother was seeking to cope with H they were also seeking to pursue the identification and purchase of a property to move into. I think it's reasonable to conclude that it would have been the father who was probably driving that process with the mother probably going along with it because they had embarked on it in the expectation that it would be dealt with before H arrived and so the net result for both parties, although I think obviously in a much more acute form for the mother, was that they found themselves coping with two of life's most stressful events at the same time and not surprisingly things were very difficult and the mother found it hard to cope. She - they both agree that this was so - was distressed and crying, she felt she had inadequate support from the father, a not uncommon complaint. She was an anxious mother - not surprising, many first time mothers are - and she felt that the father was not sufficiently careful with H, again a pretty common concern of new mothers.[145]The solution that the parties adopted and it probably tied in I think with the mother's annual return to Poland for a summer break anyway, was that she would go back to Poland for a couple of months whilst the renovations were completed so that she and H were not exposed to all of that and the stress that would accompany that but would rather relax and draw upon the family support available in Poland.[146]It seems right that neither the mother or the father felt that her position was such that she needed to call upon GP support or health visitor support or medication or counselling or anything else in England but that a period of respite in Poland was thought would be sufficient for her and hence she went to Poland with the intention of -getting that respite and seeing a counsellor in Poland because it seems there was some family link to somebody. That as it were, did not come to fruition and she saw somebody else for three sessions which she didn't feel were useful or not sufficiently useful that she sought to recommence after the summer break. She in fact I think went on a waiting list but thereafter she didn't require further medical support or counselling support until the 28th of March when she began to see a psychotherapist and I've already set out the contents of - of that report which suggests that the support she was by then seeking, whatever the original reason was, was for extending self-insight and personal development of depression of anxiety.[147]The psychologist report does go further and says that she is a highly emotionally sensitive person and that she has a tendency to low mood and a tendency to react fearfully in new and highly stressful situations and that she is emotionally strongly connected to her family, although as an aside I wonder whether that is actually a manifestation of her idealisation of the present situation she finds herself in given that she lived for eight years in England without her family nearby.[148]The psychologists concluded that she couldn't on her own guarantee to meet the child's needs but could with the support of her family. Mr Walker concluded that a move to England without her agreement would likely impact on her functioning and making her unavailable emotionally or physically to care for H. As I have said before, he seems to have worked on the assumption that the Polish Hague decision was a conclusion that a return of H to England with her mother would expose her to a grave risk of harm and I note what is said at D10, paragraph 29, in particular the expression in the light of this, i.e. the conclusion that the return of H would involve a grave risk of harm to her, it is evident that impact of change upon H through the impact on her mother would be harmful. I think that is actually a misunderstanding of what the effect of the Polish Hague decision was, that decision itself being based on an essentially erroneous basis that the mother would not return with H to England and that a return of H would necessarily involve separation from her mother and a handover into the father's immediate care.[149]In giving her evidence I found the mother generally to be composed. As I have said, she displayed little emotion but came across as rational, careful in her answers. I thought perhaps rather guarded, thinking carefully at times about what response she was going to give. When she dealt with the impact of the return on her she said:
"I don't think I could function because of the level of anxiety. I wouldn't function, I would be useless. I couldn't function normally, I couldn't take care of her on an everyday basis. When I'm in Poland I can. During stressful moments in Poland I can fall back on my family and ensure she is looked after. I can count on them. Just the thought of coming to England makes me lose my function."
When she said this I didn't pick up really any emotion underlying it, it came across as somewhat formulaic, a mantra repeated.[150]Given she has an excellent grasp of the English language and in general came across as articulate and composed, I conclude from the way she expressed it but more importantly from the combination of other material, that when she said that she wasn't having to work hard to maintain her composure but rather it was words.[151]Taking account of all that I have just rehearsed I don't conclude that the medical evidence or her account of previous life in England or the previous experience that she has had of psychological distress are such that I can conclude she has a mental health problem such that if I were to order H return to England, which the mother would accompany, that she would suffer a serious breakdown which would impact to a significant extent on her functioning. I conclude that her prior history and the circumstances of her previous problems with psychological functioning suggest that in a period of acute stress she might suffer some mild form of anxiety or depression but no more than that.[152]In the context of a return now it's right that the mother has now had some seven or eight months of psychotherapy and certainly seems better able to cope as she herself would say. In addition, I think she would be returning to a situation very different to that which existed in July 2016 when she was in the cauldron of a new-born baby, a potential move and feeling perhaps that her relationship with her baby's father was not providing the support that she needed. A return now would involve the mother having her own accommodation, financial support, the relationship with the father would not be present but his involvement in H would be regulated, she would be able to work and be independent.[153]I don't rely on it to any great extent but I thought it was interesting that Mr Walker, when he observed the mother and father together, observed no aspect of controlling or coercive behaviour, or a worrying dynamic, but rather that the parents were pleasant to each other in that environment. I don't think in the light of all of that, that the evidence supports the contention that there would inevitably be a serious breakdown. I don't consider that the risk of a serious breakdown is high.[154]I conclude that the mother is likely to suffer unhappiness, she is likely to suffer to some degree stress and anxiety but not at a level which will seriously undermine her ability to parent H. And of course, in conjunction with all of the other matters I've just referred to, the mother will not be, if she returns to England, completely cut off from her family who I have little doubt would support her as they did when her mother came over when H was a young baby.[155]Turning briefly then to other aspects of the Welfare Checklist in order to complete my analysis. In relation to H wishes, of course they cannot be articulated at this stage, one can only assume that H wants a relationship with both, that she wants her main home to remain with her mother, that she wants to spend time with her father. She has the normal needs of a two year old, in particular she has a need for a stable primary carer who can give her good quality care but she also needs to have a father involved in her life to assist in meeting those needs. In particular, she has an emotional need and a very important emotional need to know her father and her wider family.[156]In terms of the likely effect of a change on her, it is right that she is settled to a degree in Poland. She has developed a new way of life with her mother and her grandparents and no doubt their home and their involvement in her life is very familiar and comfortable to her and so removing her from that will undoubtedly be a significant change and I accept to a degree Mr Walker's assessment that it would be a big change for her. But she is not yet two. A, two year old's primary need is for the adults around them and I accept in this case, as Miss Guha would say, that that also involves the maternal grandmother and she obviously has become a significant figure for H. But the mother herself has said she is contemplating a move within a couple of year away from Żary and another change is imminent with the mother contemplating fulltime employment and H entering nursery. So there is change afoot anyway.[157]I am satisfied that if she were relocated from Poland to England H will, with the support of her mother and father and extended family, manage that change. There is no particular aspect of H’s history which suggests that she would not cope with the change that tens of thousands, or possibly millions of children across the world undergo of moving from one part of a country to another or indeed from one country to another and with the right support from the adults around them I am sure she will make that transition well and the benefit of having her father in her life on a regular basis will more than offset the loss of the input of the maternal grandmother which I suspect will be ameliorated to some extent by visits in any event.[158]Because I have concluded that the situation on the ground in terms of housing, accommodation, finances, employment et cetera, will be well-manageable, for H she will probably find herself in a situation with a mother in employment, a father in employment, two homes, a nursery in which she will interact with children in English, albeit perhaps many other nationalities and cultures as well. She will speak English, she will speak Polish with her mother, she will speak Czech with her father, she will grow up with the benefits of those three languages, fuller relationships with all of her family members and assuming that they all live within a sensible travelling distance of each other, the regular and extensive involvement of her mother and father in all aspects of her daily life, whether it is her nursery, whether it is taking her to teach her to swim or to do ballet or to do whatever other activities the parents agree upon. She will be part of lives of her mother and father and they will be part of her life in a community together.[159]In terms of age, sex and background, I don't think I need to say any more about that.[160]In terms of harm I have already dealt with really the two essential forms of harm which are in play here, one of which is the risk of the mother collapsing emotionally and my conclusions on that I've already set out. There may be a modest negative impact on her care for H in England in the short term but in the medium to long term I do not believe there would be any significant difference.[161]The other risk of course is the much more serious risk as I find it to be of H relationship being disrupted or terminated, which again I've already dealt with. Whilst in respect of the mother's position, the risks can be, in many respects, catered for and steps taken to ameliorate them it's much harder to see how the risks in Poland of the relationship being terminated can be managed. If H remains living in Poland the Polish courts will assume jurisdiction, the mother will be likely to resume aggressive litigation, reigniting the application that she has earlier made with all of the wholesale criticism of the father and his family that the courts in Poland have already to some degree accepted in the Hague Convention application. The mother would no doubt seek to rely on that Hague judgment in preference to this. And so even though this court might make a contact order, the Polish court will be at liberty, and quite rightly so, them then having habitual residence jurisdiction, to investigate as they see fit and if an application is made to restrict the father's contact (as I think it likely would be) there is little that I can say in an order in this court that will affect that. Having said that I think the more substantial concern is not necessarily the mother pursuing a course of litigation but simply on the ground the attitude to contact led by the family and the mother being such that it will, as I have already said, be made very difficult to work in practice with a very high risk of that fragile relationship being broken. However effective contact enforcement process may be on paper the reality as we know from domestic experience is that contact can be very vulnerable to disruption in practice and once broken can be very hard to restart. The mere fact of a renewed court process seeking to limit contact would inevitably involve delay, probable disruption of any ordered contact and damage to the father/daughter relationship. I conclude that there is a high risk from a variety of sources that contact will not be sustained in a way which allows H and her father to have a meaningful relationship.[162]Aside from all of those concerns, I am concerned that the options for implementing contact are overly optimistically assessed and, in particular, by the mother. I suspect the father is slightly pessimistic. If the will on the part of the mother and her family was there to absolutely make this work then I think in arithmetical terms the father probably could make it twice a month, although that would need fairly careful reconsideration in due course. But what with the vagaries of flights, of weather, of illness, the likelihood of 12 annual trips seems to me to be optimistic, whether viewed in the short or the medium term.[163]In terms of capability I have already really dealt with this. In general terms both of the parents are capable of meeting her needs, save in respect of the mother in terms of the prioritisation of the role of the father. The mother’s capability will be somewhat enhanced in Poland. I think there is a limitation in the father in that he probably fails to value the mother's views as he ought to in respect of his little girl. She clearly will know best in many respects and he needs to be able to understand that.[164]In relation to the range of powers of the court, I consider that protective measures included within an order would be capable of minimising the impact on the mother and a clear structure could provide for management of contact and reduce flashpoints. In terms of orders I might make which would have effect in Poland I have already said that whilst they could be made the attitude of the mother and her family on the ground would mean they would be very difficult to enforce in practice.[165]So overall, in considering the proposals offered by the mother and the father in promoting H’s welfare in the short, medium and probably the long term, I conclude that the father's proposal is the one which will promote her welfare overall. It minimises the risk to H and promotes her needs, the overall benefits outweigh the risks.[166]Conversely, the mother's proposal is really pregnant with risks in relation to H relationship with the father. It's not just a question of trusting her but the track record of her family and her attitude in the legal proceedings.[167]Clearly neither option is entirely without risk but in the father's case the risks are outweighed by the benefits. In the mother's case I think the benefits are clearly overtaken by the risks to contact.[168]In terms of H rights to a relationship with her parents and in relation to section 1 (2A) and in relation to Article 9 and Article 24 (3), if I adopt a course which puts in place the prioritisation of her relationship with both parents that would meet those fundamental rights.[169]My overall conclusion therefore is that I will make an order for the return of H to this jurisdiction to live in this jurisdiction, that to be implemented by the beginning of January 2018.[170]The implementation of the sort of contact regime which I intend to put in place will require that H and the mother and father live within a sensible travelling distance of each other which probably will involve the Midlands in some shape or form. I think given the significant transition that will have to be made by the mother and by H in particular, but also the father, the contact within January should be once weekly on a Saturday. I don't think that introducing a weekday contact at that point is sensible.[171]However, by the time we get to February when H will be two and hopefully there will be some progress in employment, I think there should be one weekday late afternoon, contact based on an activity if that is what the parents choose, whether it's taking her swimming or something, the mother and father can see if they can agree on that activity. In addition there will be the weekly Saturday visit.[172]Thereafter it should progress to the implementation of overnight contact around Eastertime. I don't have the date for Easter but during that period would seem to me to be a sensible time to introduce overnight, that should be in England, it should be at the father's home wherever he is then, if he wants to be supported by his mother at that point in time I see no difficulty with that, she's a familiar face.[173]In terms of thereafter, up until the summer, I think the proposal for alternate weekends with the overnight is sensible plus one weekday evening. In the summer there should be the period of one week over which extensions to the overnight regime are implemented.[174]Thereafter there should be a review to see how that has gone with a further Cafcass report.[175]The parents should attend a separated parents information programme or similar, something of higher value in terms of the professional input. It would probably be more of assistance to the parties than a simple SPIP. If the parties can agree on something of that nature I think that ought to be incorporated.[176]And I am satisfied that the Article 42 criteria are met. H wasnt given an opportunity to be heard directly because she is not sufficiently articulate to do so but she was reported upon by Cafcass rather than represented.[177]The parties plainly will have been given an opportunity to be heard and I have considered the reasons for and evidence underlying the non-return decision. The position has changed in that the mother is now saying she will accompany H back, there will not be a separation of H and her mother.[178]The protective measures will allow the mother to live independently and to have little engagement with the father unless she wants it and so in those circumstances that is the context within which I consider that this court's fully considered welfare decision appropriately takes precedence over the Hague decision.[179]In terms of ensuring that the dynamic between the mother and father is maintained, I think that these arrangements ought to take effect under an order which says that the child will live with the mother and will spend time with the father.[180]I want the father to be under no illusions that the mother remains the primary carer on day to day decisions such as diet, sleep routines and all of those things which are central to a little child's existence. The father should expect to adopt the mother's routines. Of course he has a right to have a say on things like the selection of a nursery for her and the other important aspects of parental responsibility but I absolutely will not contemplate a situation where these parents get into spats over whether she is to have her ear pierced or to have her hair cut or whether she is to go to one particular doctor surgery or another, all of those day to day decisions fall within the proper remit of the primary carer.[181]That is my judgment.

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, Art 42 and Art 47 of BIIR, Povse v Alpago (above)”

Cited in 1 later judgment