This is not a story that can – or should – be told in a single sitting. Some cases demand more space, not only because of their complexity, but because of the questions they raise. This is one of them. It is a case that, in my view, deserves careful attention from both practitioners and the judiciary alike. The decisions made along the way did resolve a dispute between two parents; they will shape outcomes for very young children and, perhaps more concerningly, set a tone for how similar cases may unfold in the future.
A few years ago, our firm was instructed by a father whose children had been taken from the UK to another jurisdiction. “Abducted” is a strong word, and not one that sits entirely comfortably here – “wrongfully retained” is probably more appropriate. The father had, in fact, agreed to the children travelling abroad. At the time, there was nothing to suggest that this would become anything more than a temporary stay. The mother required medical treatment and wished to spend some time with her family. The children were extremely young: one an infant, the other only a few weeks old. There was trust, and with it, an expectation that the children would return.
That expectation proved misplaced.
A few months into their stay, the father was informed that the children would not be coming back. Faced with that reality, he acted promptly. Legal steps were taken without delay, and proceedings were issued in the country where the children were then living. At the time, this appeared to be the sensible course. The children were physically present there, and it was assumed that any order made would be more readily enforceable on the ground – especially as they were in Poland which is an EU member state.
Proceedings under the Hague Convention 1980 were initiated swiftly by the lawyers in Poland. In parallel, the mother issued her own application for a “live with” order in that jurisdiction. That application was stayed pending the outcome of the Hague proceedings, as one might expect.
What followed, however, was far from swift.
After nine months, the court made an order requiring the mother to return the children to the UK within two weeks. On paper, this was a clear outcome. In practice, it was anything but. The legal system in that jurisdiction provides for a period during which a judgment must be validated, allowing time for an appeal to be lodged. And one was. Although the return order was made in March, it did not become final until September, following the dismissal of the mother’s appeal.
By that stage, 14 months had passed since the father’s initial application.
This is, perhaps, the first point at which one pauses. The Hague Convention is designed to operate with urgency. It is built on the premise that time matters profoundly in the lives of children. Yet here, more than a year had elapsed before a final, enforceable order was in place.
Even then, matters did not conclude and the children were not return.
Enforcement proceedings became necessary, again within the same jurisdiction. What followed was an extraordinary sequence of attempts to enforce the order: nearly 30 visits involving the prosecutor, police officers, and a court-appointed guardian. They were unsuccessful as no one was actually willing to forcefully remove the children from their mother’s care.
The mother was present on only a handful of those occasions. Although the visits were described as unannounced and should be as such, it is difficult to avoid the conclusion that they were, at the very least, anticipated. Whether through chance or design, the outcome remained the same: the order was not enforced, and the children remained where they were.
At that point, all domestic avenues in Poland had been exhausted. There were no further mechanisms available within that jurisdiction to secure the children’s return.
It was against that backdrop that discussions turned to a different approach. Together with the client and his lawyers abroad, we considered the possibility of seeking a mirror order in the UK. The reasoning was straightforward: if enforcement could not be achieved there, perhaps it could be achieved with the assistance of the court’s here, where the courts might have wider and more effective powers to secure the return of the children to their place of habitual residence and potentially open a different routes under criminal law in Poland.
A logical step, on paper.
But as is often the case in cross-border disputes, what appears straightforward rarely is.
Easier said than done…
Disclaimer
This article is based on matters arising from the author’s professional experience. All identifying details have been removed or altered to preserve client confidentiality.
The content is provided for general information purposes only and does not constitute legal advice. It should not be relied upon as a substitute for obtaining advice specific to individual circumstances.
Whilst reasonable care has been taken in the preparation of this article, no responsibility is accepted for any reliance placed upon it.
