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Discharge of return orders under Article 11(6) – (8) of the Brussels IIA Regulation

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Posted in: Family and children
Date published: 21/03/2023

IMD Solicitors were instructed on a complex international children matter by a mother desperate to protect her child. The complexity of the case arose from its background, as well as the rarity of the court applications made.

The case concerns a 13-year-old girl (“M”) born to Polish parents in the UK. At the age of 6, during a trip to Poland, M disclosed to her mother that she had been subjected to sexual abuse by her paternal grandfather. Inappropriate behaviour on behalf of the grandfather had also been witnessed by M’s godmother during the same trip.

Following the allegations, the mother alerted the Metropolitan police and after M gave an ABE interview, the matter was referred to the Polish police for further investigation.

M’s parents separated and although some supervised contact took place, it became apparent that M did not want to see her father and contact was stopped.

This triggered an application from the father for a Child Arrangements Order and the mother cross-applied requesting permission to temporarily as well as permanently remove M to Poland. During the proceedings, the mother was given permission to temporarily remove M on four occasions.

In January 2017, M made new allegations, this time against her father, and in May 2017 she was joined as a party through a Guardian.

At a case management hearing in July 2017, the mother was again given permission to temporarily remove M to Poland and also to apply later to extend her trip. The mother applied to the Polish courts for permission for M to live in Poland and have a psychological assessment to determine the veracity of the child’s allegations as well as the impact of the events on her mental health.

At the start of August 2017, the mother’s application to the UK courts to extend her trip  was refused and an order was made for M to be returned to the jurisdiction. In light of the allegations made by M and in a desperate effort to protect her child, the mother did not return M to the UK.

As a result of M’s allegations, the paternal grandfather was arrested by Polish police and charged with offense against M.

In September 2017, the Guardian issued High Court proceedings for M’s return and that same month M was made a Ward of the High Court. The mother was ordered to return M within 48 hours of being served with the order. The mother, however, was extremely fearful of the risk of harm that M’s return posed to the child and she did not return her to the UK.

The father initiated Hague Convention proceedings in Poland and it was decided that M would undergo two psychological assessments to assist the court.

On 14 November 2017, Keehan J made a further return order and although this was initially accepted by the Polish court, the mother appealed the decision and this was allowed.

In September 2018, the Polish court dismissed the father’s Hague Convention application for M’s return on the basis of Article 13(b), a decision which the father appealed.

In October 2018, the father was charged by the Polish police in relation to the allegations made and bail conditions were set.

In March 2019, the father applied to the UK High Court for a return order pursuant to the procedure set out in Article 11(6) – (8) of the Brussels IIA Regulation.

In May 2019, the father’s appeal against the Hague non-return order was dismissed and the judgment also referred to Article 20 of the Hague Convention.

In July 2019, the father’s Brussels IIA Regulation was heard by Mr Gupta QC. The mother did not attend the hearing, although she sent various documents to the court by email. Mr Gupta QC’s judgment was delivered on 18 July 2019, ordering M’s return. No further action was taken at that stage by either of the parties.

In 2021, the mother initiated financial remedy proceedings which proceeded to a Final Hearing.

In March 2022, the father applied to the Polish courts for enforcement of Mr Gupta QC’s return order, having previously not taken any steps to ensure M’s return.

On 22 June 2022, the mother instructed IMD Solicitors LLP who filed an urgent application to the High Court to discharge or set aside the return orders of Keehan J from November 2017 and of Mr Gupta QC from July 2019. Given the substantial passage of time and the father’s lack of action to ensure M’s return, the mother agued that the matter should be looked at again before enforcing M’s return. The mother further argued that the Polish criminal court ordered a psychological/psychiatric/psychosexual assessment of M which would be impacted on if M was to return to the UK and would interfere with the proceedings.

The next day, the matter was heard in error on a without notice basis by Poole J and it was determined that the father considerably delayed his enforcement application and, as such, the court had grounds to consider whether the return orders should be set aside. The two return orders were consequently stayed, and the matter was relisted on notice on 30 June 2022.

Counsel for the mother argued, relying on the decision of Mostyn J in Re F (A Child) (Return Order: Power to Revoke) [2014] EWHC 1780 (Fam), [2014] 1 WLR 4375 and on r 4.1 (6) of the Family Procedure Rules 2010, that the case fell within the court’s powers to revoke its earlier orders on the basis of a change of circumstances, in this case the passage of time, the sexual abuse allegations and M’s psychological assessment. The latter outlined that M’s account of sexual abuse by those accused was plausible and detailed, and that there was no evidence of alienation by the mother.

It was also argued on behalf of the mother that the UK jurisdiction was no longer suitable for the proceedings given the long time that M had been living in Poland and the 5 years that the Polish authorities have spent dealing with the case.

The court determined on 30 June 2022 that the two return orders will continue to be stayed and the matter was re-listed for a hearing on 26-28 September 2022 to consider the mother’s application for set-aside, as well as the father’s application for a return order.

Through her statement, the Guardian submitted that it was no longer in M’s best interest for the return order to remain in place. Having assessed M’s position, the Guardian concluded that M is of an age and understanding where it would be against her interests to be forcibly returned to the UK. The Guardian was worried “that as a competent young person, M has expressed serious thoughts about self-harm if she were compelled to live in the UK.”

The matter came before Justice Francis and the High Court declared that, pursuant to Article 10(b)(iii) of the BIIA Regulations, the courts of England and Wales retain exclusive jurisdiction in relation to M and that they have retained such jurisdiction since the father’s application under Article 11 BIIA on 2 April 2019, and further that they have been continually seised of the father’s application. The mother’s position was that the Polish courts had already correctly determined that they have jurisdiction in relation to the welfare matters and IMD Solicitors, on her behalf, made an application pursuant to Article 15 of BIIA within the proceedings to transfer the case to Poland.

At the above hearing, the High Court approved a series of questions to be sent to the Polish courts requesting cooperation pursuant to Article 55 of the BIIA Regulation, designed to assist the court in understanding the processes available to the Polish courts.

Further, the return order of Keehan J and Mr Gupta QC were successfully set aside. Whilst the issue of the transfer of proceedings  is ongoing, the orders for the return of the child are no longer in place and the child is reassured she will not have to leave the country where she currently feels safe with the Mother.  This is certainly a case of importance, not only through the nature of the court applications involved and the complexity of the various proceedings in different jurisdictions. The case also serves as a strong reminder to all practitioners that at the core of strenuous proceedings often lie children who suffer the greatest harm and who should, above anything, be heard and protected.  

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

To find out more about our services, visit International Family Law section of our website.

Published by:

Iwona DurlakSenior Partner

Family Law – IMD Solicitors LLP

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L v L - We were instructed by a mother in a complex international children matter. She was required by orders of the UK courts to return the child to the UK from Poland. She had travelled with the child to Poland but, following unsuccessful application to extend her stay there in August 2017, she decided not to return to the UK because the child disclosed sexual abuse by a member of the paternal family and the father. In September 2018, the Polish court dismissed the father’s Hague Convention application for the child's return on the basis of Article 13(b), a decision which the father appealed. In March 2019, the father applied to the UK High Court for an order for the child’s return pursuant to the procedure set out in Article 11(6) – (8) of the Brussels IIA Regulation. Despite the father's unsuccessful Hague Convention application in Poland, the UK court ordered the return of the child. Article 11 does not allow the court of the returning country much discretion. After all of this, the mother instructed IMD Solicitors to apply to discharge the orders of the UK Court for the return of the child. Even in the face of the fact that most applications to discharge such return orders fail, we succeeded. We are currently awaiting a decision in the UK courts on a further application for the transfer of jurisdiction to the Polish courts where the mother resides with the child.
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