T v H [2025] EWHC 1875 (Fam)

[2025] EWHC 1875 (Fam)Case No FD25P00145
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 9/07/2025Venue IN THE FAMILY COURT SITTING AT THE ROYAL COURTS OF JUSTICE
Before
THE HONOURABLE MR JUSTICE CUSWORTH
Between
TApplicantHRespondent
Mr M. Smith (instructed by IMD Solicitors) for ApplicantMr F. Shama (instructed by Dawson Cornwell LLP) for RespondentHearing Hearing date: 9 July 2025
JUDGMENT

Cusworth J :

[1]This case concerns the welfare of E, born January 2022 and so aged 3 ½, and N, born February 2023 and therefore now aged 2 ½. These proceedings were initiated by the children’s father’s C66 application issued on 26 March 2025, seeking to make the children wards of court (which is not now pursued), for a summary return order to this jurisdiction to be made for both of them, for a declaration that they are habitually resident in this jurisdiction, and for various prohibited steps orders to secure their position on return. As will be seen, this was not the first set of proceedings in relation to these two children between their parents.[2]This matter was first heard by Keehan J on 2 April 2025, when the parties agreed to mediate the issues between them. Sadly, that has not been effective, and the application was then restored before the President of the Family Division on 23 May 2025. At this hearing the parties were not agreed about whether the children are habitually resident in this jurisdiction or Poland, and whether this court has jurisdiction to determine the father’s application(s). The question of jurisdiction was therefore listed before me to determine today, with a one-day time estimate. I have heard submissions from both counsel and read their full legal skeletons. I have also considered the parties’ respective statements on the issue, contained within the 415-page bundle, and been furnished with an authorities bundle by Mr Shama for the mother which runs to well over 750 pages.[3]Background. Both parties were born in Poland. They met in 2009 and commenced a relationship in 2012. They moved to the UK in June 2015 and married July 2016 in Poland. The parties moved around frequently in the UK, eventually settling in Wigan where they purchased a home. N and E were both born in England. The mother says that both have Polish identity cards, PESEL numbers and are officially registered as Polish nationals.[4]A significant element of the case is that the mother alleges that throughout the parties’ relationship she was a victim of domestic abuse. She says that this included psychological, physical, financial and sexual violence, and coercive and controlling behaviours. The mother further says that she was raped on several occasions over the course of the relationship. She adds that she was later diagnosed with PTSD by a psychologist. She further says that she has been referred to and sought help from the National Domestic Abuse Helpline, Women’s Aid and Rights of Women. There has also on her case been involvement of the police and social services. Whilst none of those matters go directly to the issue of jurisdiction, they do form the backdrop to the proceedings generally and explain the unfortunate position that the children in this case now find themselves in. Even though the removal of the children to Poland happened over 2 years ago, there has as yet been no fact-finding in relation to these allegations in any jurisdiction.[5]On 17 April 2023, the mother left the UK, with the father’s consent, and travelled to Poland with the children. He says that this was for a holiday, as far as he had been informed. She did not return, but instead remained with the children with her parents. At the time, E was 16 months old, and N was 2 months old.On 2 June 2023, just over 6 weeks after she had arrived in Poland, the mother filed an application with the Regional Court in Sieradz to determine that the children’s place of residence should be with her. These proceedings were later stayed.On 26 July 2023, the father duly initiated proceedings under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (‘the 1980 Convention’) for the children’s summary return to England. These proceedings were heard by the District Court in Lodz.[6]The Polish court found that the mother had wrongfully retained the children in Poland from April 2023. A summary return order was made on 26 March 2024.The mother appealed the decision on 22 July; however, her appeal was dismissed on 13 August 2024. It is recorded in an order dated 6 September 2024 that, having dismissed the appeal, “that the Court of Appeals in Warsaw states that this ruling is final as of 13.08.2024”. On 7 October 2024, the mother made a further submission of a cassation appeal and suspension of execution of the decision of the Court of Appeal’s decision of 13 August, but this was dismissed on 29 November 2024.[7]In their judgment of 26 March 2024, the first instance court did not make any factual findings about the mother’s allegations but determined as follows in respect of the how the issues being raised by the mother should be dealt with in future proceedings, as opposed to in the application then before it:
“During the proceedings, the participant in the proceedings did not demonstrate that the father committed violence or serious neglect in the exercise of parental authority. Even if such a situation were to take place, the determination of the weight of possible neglect and their effects in terms of exercising parental authority over the children can only be subjected to the assessment of a court having jurisdiction in matters of parental responsibility, not in these proceedings, in which the Court does not decide on parental authority over the children, but focuses on the fulfilment of the premises for ordering the return of children to the state in which they had their habitual residence before the wrongful detention in Poland. In the matter of parental authority, jurisdiction is retained by the British Court, to which each of the parties may apply for a decision on determining the place of residence of minor children, the manner of exercising custody over them, as well as possibly issuing a decision on permitting the relocation of children to Poland.”
[8]There have also been enforcement proceedings in Poland. On 2 October 2024, the court determined it would instruct a court-appointed guardian to make a compulsory removal of the children from the mother to be handed over to the father. To date, the Polish court has not been able to enforce its order for summary return despite numerous attempts to do so.On 7 February 2025, the mother issued an application in Poland to the District Court in Sieradz pursuant to Article 577 of the Code of Civil Procedure requesting protective measures are put in place for the children, by suspending the enforcement of compulsory removal proceedings in Poland. This case was referred to the District Court in Lodz, but dismissed on 13 May 2025.[9]The legal position on jurisdiction. The 1996 Hague Convention On Jurisdiction, Applicable Law, Recognition, Enforcement And Co-Operation In Respect Of Parental Responsibility And Measures For The Protection Of Children (‘the 1996 Convention’), at Article 5, states:
‘(1) The judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child's person or property. (2) Subject to Article 7, in case of a change of the child's habitual residence to another Contracting State, the authorities of the State of the new habitual residence have jurisdiction.’
[10]Article 7(1) of the 1996 Convention sets out that: ‘(1) In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or b) the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.[11]The HCCH Practical Handbook on the Operation of the 1996 Hague Child Protection Convention explains, under the heading: ‘Jurisdiction in cases of international child abduction - article 7’ 4.20 In cases of international child abduction, the authorities of the Contracting State of the habitual residence of the child immediately before the wrongful removal or retention retain jurisdiction for measures aimed at the protection of the person and the property of the child until a number of conditions have been met. This is to deter international child abduction by denying any jurisdictional benefit to the abducting party.[12]In the explanatory Lagarde Report it is said additionally that: 46. The underlying idea is that the person who makes a wrongful removal should not be able to take advantage of this act in order to modify for his or her benefit the jurisdiction of the authorities called upon to take measures of protection for the person, or even the property, of the child. But, on the other hand, the wrongful removal, if it persists, is a fact that cannot be ignored to such a point as to deprive the authorities of the new State, which has become that of the new habitual residence of the child, of this jurisdiction over protection. The difficulty consists therefore in determining the temporal threshold from which jurisdiction would pass from the authorities of the State from which the child has been wrongfully removed, to those of the country to which he or she has been taken or in which he or she has been retained.[13]Finally, in B v N (No. 2) (Art 7 and Transfer of Jurisdiction) [2024] EWHC 17 (Fam) Macdonald J said: 61. I accept that both the Explanatory Report and the Practical Handbook make clear that the jurisdictional rules set out in Chapter II of the 1996 Convention seek to deter international child abduction by denying any jurisdictional benefit to the abducting party and to discourage attempts at forum shopping using the abduction of children.[14]So, a court will usually have jurisdiction under Art. 5 of the 1996 Convention if the children are habitually resident in the country at the relevant date, that is the date of the application, but Art.5 is subject to Art.7, which sets out the additional criteria which apply before jurisdiction can transfer in a case of wrongful removal or retention. In this case, of course, the Polish court has made the finding that the mother wrongfully retained the children in Poland.[15]The mother relies on Art.7(1)(b) (above), which effectively sets out four criteria, all of which must be satisfied before the jurisdiction of the original state is lost. Those, as separated out by Mr Smith for the father, are that:(i) the children have acquired a habitual residence in another state;(ii) the children have resided in that other State for at least one year;(iii) no request for return lodged within that period is still pending; and(iv) the children are settled in their new environment.[16]The mother must therefore demonstrate that all of these four elements are satisfied before welfare jurisdiction in relation to these children can transfer to Poland, and otherwise it is retained in England and Wales. It is therefore sufficient for this court to retain jurisdiction for me to conclude that any one of the criteria in Art.7(1)(b) is not satisfied.[17]There is no issue but that criterion (ii), the children’s residence in Poland for more than a year, is satisfied. They were initially taken there, as explained, on 17 April 2023. The father however disputes that the other criteria are satisfied in the circumstances of this case. Clearly, although they are distinct and separate, questions of habitual residence and settlement are not entirely coterminous, but each do require that some careful account is given to the current circumstances of the children. I will return to them later.[18]I will start with the third condition, which in the circumstances of this case is whether, although a request for their return was lodged within a year of the children’s removal, this request can be said to be ‘still pending.’ Mr Shama, in his skeleton argument for the mother, sought to draw a parallel between the facts of this case, and those of B v N (No. 2) (Art 7 and Transfer of Jurisdiction) [above], saying in terms that:
‘It is notable that in this case, as in the present case, the 1980 Hague Convention proceedings were expressly noted to have been concluded in the country to which the child had been wrongfully removed.’
There is however a striking difference between B v N and the instant case, which is that in that case the application under the Hague Convention had been dismissed, so clearly there was no ‘pending’ request. That is not the case here.[19]In this case, a return order has been made, and despite a lengthy process of appeals and further applications conducted by the mother, that order has yet to be implemented, as explained. Although the Polish Court made a return order as long ago as on 26 March 2024, following hearings in October and November 2023, and notwithstanding the dismissal of her appeal on 13 August 2024, the mother has refused to comply with its terms. This has led to the order being made in Poland on 2 October 2024 for the instruction of a court-appointed guardian to intervene and hand the children over to the father. The mother then made a further unsuccessful application to discharge the October 2024 order in February 2025, that application finally being concluded in May 2025, also as set out above. Between October 2024 and March 2025, the Polish authorities made no less than 17 attempts to remove the children, including as many as six in December 2024 and seven in February 2025. I am told by the father that in total there have now been as many as 21 separate attempts, albeit, Mr Shama says, he is told by his client that the last such effort was now a couple of months ago. The Polish system has required the father or a member of his family to be in attendance, which may have added to the mother’s difficulties. Meanwhile, Mr Shama says, this court should now treat the Polish proceedings as no longer pending for the purposes of Art.7, and further, that the children should be viewed as settled in their lives in that country. I will deal with the impact of all of this on the children a little later.[20]I am very clear, in circumstances where the authorities and source materials all agree that the rules seek to deny any jurisdictional benefit to the abducting party, that the word ‘pending’ in Art.7(1)(b) should not be narrowly interpreted. It applies directly to the request for a return, and not simply to the proceedings which are intended to give effect to that request. Otherwise, many abducting parents would be encouraged to seek to thwart the enforcement of return orders in the hope that in due course they could undermine the scheme of the Convention, and claim that jurisdiction had now passed to the country to which their children had been abducted.[21]It is no accident that Art.7(1)(a) deals with acquiescence, and Art.7(1)(b) derogates from the wording of the 1980 Convention by speaking of a period of one year after the person having rights of custody ‘has or should have had knowledge of the whereabouts of the child’. The primary target of the provisions is plainly a situation where time has passed and no action has been taken, and any proceedings which have been instituted have come to an end without further active steps being either authorised or put into effect, usually where any application for a return order has been dismissed.[22]Here, the sole reason why the return order made by the Polish court last year has not been implemented is because the mother has determined that it should not be. I am not persuaded by Mr Shama that I should treat the Polish authorities’ efforts to enforce their order as at an end; indeed, it is more likely that the mother’s attempts to set aside the October 2024 order for the appointment of a guardian may have affected the ongoing efforts to enforce the original order. There is nothing before me to suggest that the authorities in Poland have given up their efforts at enforcement, and indeed the October order has as recently as 13 May 2025 been upheld by the Polish Court.[23]So, when a return order has been made, as here, and active attempts to enforce it are ongoing, I am satisfied that ‘the request for return lodged… is still pending’ for the purposes of Art.7, and will remain so until either the children are returned to this jurisdiction, the order for a return is revoked by the Polish Court, or (possibly) efforts to enforce it are permanently suspended. Where a process of enforcement is still underway following a return order, to determine that the request for a return is no longer pending would drive a coach and horses through the clear intention of Art.7, and greatly undermine the efficacy of the scheme which operates between the 1980 and the 1996 Conventions. A request for a return that is authorised but not yet effected must still be ‘pending’ in ordinary language – the ending of the accompanying proceedings will only be likely definitive if no return is ordered, once any available appellate route is exhausted.[24]Mr Shama goes on to argue as follows. He says: ‘If the Article 7 jurisdiction was conditional upon the implementation of an order, a lacuna could develop where in the event the summary return order was never implemented, jurisdiction would subsist regardless with the State the child was wrongfully removed from. This could be theoretically for the rest of the child’s minority, despite a child being settled in the new State. Irrespective of how the child came to be in the new jurisdiction, and whether it was by wrongful removal or retention, it cannot be in a child’s interests for jurisdiction to never change to their country of habitual residence. As a result, it is submitted that as soon as a child becomes “settled” in their new environment… jurisdiction must then be transferred to the State of the child’s new habitual residence, and these two provisions should be read in conjunctions with one another’.[25]This cannot be the right approach – for it would suggest that after a return order is made, the abducting parent could still actively seek to achieve ‘settlement’ for the children, whilst evading enforcement of the return order, as a way to undermine the scheme of the Conventions. Art.12 of the 1980 Convention is clear that the defence of settlement is available in summary proceedings only after more than a year has passed since the relevant abduction. If the proceedings begin before that time has elapsed, settlement cannot be introduced as a primary defence. If later a return order is made at the conclusion of such proceedings, it would be entirely inappropriate if settlement could then be relied upon (assuming that a year since first discovery had by then passed) to prevent the courts thereafter enforcing that order, if enforcement of the return was being actively pursued.[26]Of course, I agree with Mr Shama that an indefinite retention of jurisdiction is not compatible with the fundamental objectives of the Convention, expressed for the purposes of BIIR as:
‘respecting the best interests of the child by giving priority, for that purpose, to the criterion of proximity’
. That is why, as time passes after a removal, so the factors affecting the court’s determination will shift, and over time may lead to different outcomes from those in a ‘hot pursuit’ case. Both the 1980 and 1996 Conventions pay due regard to the factor of passing time. This is precisely the issue identified at paragraph 46 of the Lagarde report set out above.[27]If a return order is made, but no steps are then taken to implement it over a period of many months, then it may become possible to argue that the proceedings are no longer pending – all would depend on the factual circumstances, the actions and attitude of the parents and the court which made the order, as well also as the day to day circumstances of the children. Even then, I agree with Mr Smith for the father that the appropriate course would usually be for the abducting parent to apply to have the unenforced return order set aside. That is far from the position here, given the history that I have outlined above. I am consequently satisfied that the third condition of Art.7(1)(b) is not met, and so this court retains welfare jurisdiction over these children.[28]In those circumstances, I do not need to go on to definitively determine the remaining questions, of habitual residence and settlement. Without deciding the question, I can see that there would now be significant arguments either way in relation to the question of the present habitual residence of the children, were the question of jurisdiction not still governed by Art.7 of the 1996 Convention.[29]The difference between the two concepts was recently considered by Harrison J inRe G and B (Children) (Abduction: Settlement: Grave Risk: Ukraine) [2025] EWHC 795 (Fam): where he said: 48. There is a degree of overlap between the question of settlement and the acquisition of a new habitual residence, but the two issues are not the same. The parallels between the two concepts were considered by Thorpe LJ in Cannon[v Cannon [2004] EWCA Civ 1330], but his analysis needs to be read cautiously bearing in mind that since that case was decided the Supreme Court has determined that the European law test for habitual residence – 'some degree of integration in a social and family environment' - should be imported into our domestic law: see A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2012] UKSC 60.49. In Re M [and another (Children) (Abduction: Rights of Custody) [2007] UKHL 55]]…, Baroness [Hale] referred, in the context of settlement, to the child's 'integration into her new community'. Despite the similarity of her formulation with the test that later came to be adopted for habitual residence, she was not in that context seeking to compare the two concepts. Plainly, in my judgment, it is necessary to demonstrate a greater degree of integration in a new environment to establish settlement than may be required to show that a child's habitual residence has changed. Article 7 of the 1996 Hague Convention, for example, envisages a situation in which a new habitual residence can be acquired without settlement being achieved. Whereas a new habitual residence can be acquired in a single day, it is difficult to conceive of settlement being achieved other than over a period measured in months, at least.50. In common with Williams J in AH v CD [2018] EWHC 1643 and Robert Peel QC (as he then was) in AX v CY (Article 12 Settlement) [2020] 2 FLR 1257, I consider that the question of settlement should be considered 'holistically', not in stages. The court must take into account all of the relevant circumstances bearing in mind that within the confines of a summary process the picture is likely to be incomplete. Information about the child's circumstances prior to an abduction can be relevant to the issue. The court's primary focus is on the question of whether settlement has been achieved 'in a new environment' as opposed to with the abducting parent. Concealment and deceit are highly relevant to the issue, but not determinative. The severance of a pre-existing parental relationship is also very relevant, but again not determinative (as demonstrated, for example, by Black J's decision in F v M and N). The court must consider whether the child has become established in a new environment on a permanent or long-term, as opposed to transient, basis: Re N.’[30]I consider that, unlike in relation to habitual residence, I should say something about the question of settlement given the full written and oral submissions on the subject made by Mr Shama for the mother. He frankly accepts that the children have shown signs of unhappiness and instability which the mother says are down to attempts by the father, in concert with the Polish authorities, to enforce the return order. She says that any lack of emotional stability caused by these attempts should be seen as a different consideration from the children’s underlying settled condition in Poland living with her.[31]In her statement dated 12 May 2025, opposing the father’s application for a return order in this court, the mother says this:
‘Thanks to its co-educational program with mixed-age groups, E interacted well with both her peers and older children. However, due to the trauma of forced separation, both girls have become fearful of people and react strongly to any disturbance or sudden noise. E has regressed to wearing nappies and is terrified of being left alone at kindergarten, despite numerous attempts to ease her into it. Even short separations from me cause them intense stress.’
[32]Amongst the exhibits the mother’s statement is a psychologist’s report on E (born on 3 January 2022 so aged 3), which includes: ‘E is generally calm, shows age-appropriate interest in the activities offered, and maintains a cheerful mood. Occasionally, when someone knocks on the door during a session, the girl reacts with anxiety and interrupts her work. She resumes activities only after confirming that everything is fine. The mother reports that such reactions are much more intense at home, which she believes is due to previous experiences related to the family situation (e.g. visits from the father in the presence of police officers). Since December 2024, E has not been attending sessions. The mother explains that the child now reacts with fear when attempts are made for her to leave the house’.[33]In ES v LS [2021] EWHC 2758 (Fam), Mostyn J set out the law on settlement in the context of Art.12 of the 1980 Convention, stating as follows:39. The primary focus in [Cannon v Cannon (above)] was the impact in law of the concealment and subterfuge on an assertion of settlement within the new environment. Thorpe LJ accepted the submission from the Advocate to the Court that it would be very difficult for a parent who has hidden a child away to demonstrate that she is settled in her new environment: see paras 52–53.40. At paras 56–57 Thorpe LJ explained why:
“56. … The fugitive from justice is always alert for any sign that the pursuers are closing in and equally in a state of mental and physical readiness to move on before the approaching arrest. “57. This consideration amongst others compels me to differ from the opinion of the Full Court in Australia rejecting the previous acknowledgment that there were two constituent elements of settlement, namely a physical element and an emotional element. To consider only the physical element is to ignore the emotional and psychological elements which in combination comprise the whole child. A very young child must take its emotional and psychological state in large measure from that of the sole carer. An older child will be consciously or unconsciously enmeshed in the sole carer’s web of deceit and subterfuge. It is in those senses that Mr Nicholls’s proposition holds good.” 41. Now, I would entirely accept that a fugitive from justice (and her dependant child) would be unable to satisfy the mental constituent suggested by the dictionary definition of settlement, for the reasons given by Thorpe LJ. It is just not possible to intend in a bona fide way to establish a place as your permanent residence if you are always looking over your shoulder for the arrival of the authorities and making ready to flee if it looks that they are closing in. 42. … 43. In the case of In re C (Child Abduction: Settlement) [2006] EWHC 1229 (Fam) …Sir Mark Potter P at para 46 stated that the second element of settlement is “an emotional and psychological constituent denoting security and stability. It must be shown that the present situation imports stability when looking into the future”
. Again, I do not think that this is intended to suggest that the mental element is anything more than that suggested by the natural use of language namely a bona fide intention on the part of the child, or her carer (depending on the child’s age), to make a certain place her permanent home.’[34]Sadly, it is very clear to me that the current unhappy circumstances, caused not primarily by the father’s legitimate attempts, with the Polish authorities, to enforce the properly made return order, but rather by the mother’s determination to resist its implementation, have led to E presenting as anything but settled. Whilst this is not a situation where the children and their mother are permanently ‘on the run’ from justice, they are clearly, at the mother’s instance, either concealing or absenting themselves whenever there has been an attempt to implement the order which has been made. This situation has evidently had a profound psychological impact on E, entirely predictably. The issues which underly the mother’s concerns, as well as the impact on the children of her reaction to the Hague proceedings is Poland, clearly must be considered soon on a proper welfare basis. Until they can be, there is the prospect that further harm may be done.[35]In the event that I had needed to determine whether the children could be said to be settled, for the purposes of art.7(1)(b), I would have been quite unable to find that the ‘emotional and psychological constituent denoting security and stability’ (per Sir Mark Potter P, in In re C (Child Abduction: Settlement) (above)) was present at least as far as E was concerned. N of course was only months old when she left England. However, for the reasons which I have explained above, I do not consider that I need to do so. Equally, I do not need to address the question of the parens patriae jurisdiction, which the father has also raised.[36]That is my judgment on the question of jurisdiction. I have already given case management directions to counsel at the conclusion of the hearing this morning when I indicated in brief to the parties what my determination would be. 9 July 2025