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S (A Child) [2020] EWCA Civ 923

This is an appeal from a return order made under the 1980 Hague Child Abduction Convention ("the 1980 Convention").

Brief Facts
The case concerned M, a boy, now 7 years old. He was born in Poland following a brief relationship between his parents, who are Polish nationals. In 2013, the Polish court limited the father's parental responsibility, such that he retained the right to share in the making of important decisions about M's life. In 2015, it made an order extending M's contact with his father to include alternate weekends and holiday contact. In July 2018, with the father's agreement, the mother travelled with M (together with the mother's older daughter, then aged 18) to England for the purposes of a holiday. In August, the mother then told the father that she wanted to remain in England for a few months to do further work on a business that she was intending to set up. The father's case was that he was not happy about that but that he acceded to an extension on the basis that M would be returned to Poland by the end of the year. M started school in England in October 2018. In the autumn of 2018, the father, who was working in Germany at the time, visited England twice to see M. In November 2018, the mother became engaged to a Polish man who had been living in England for fourteen years and had two children of his own by a previous relationship in this country. At Christmas 2018, the mother and M returned to Poland for the holidays. M spent several days with his father, and then returned to England with the mother. The father again visited M in England in February 2019. By agreement, M visited Poland over Easter 2019. He was collected by his father on 7 April and was due to be returned to his mother on 17 or 18 April. However, the father did not return M, and instead applied to the Polish court on 17 April for M to live with him. The mother applied for M's return to England under the Hague Convention, asserting that the father was retaining him away from his country of habitual residence, namely England and Wales. She also cross-applied to the Polish court for a variation to the 2015 contact order. On 1 May 2019, the mother regained care of M during a period of contact agreed between the father and the maternal grandmother and she returned with M to England at the end of the month. On 3 June, she withdrew her Hague Convention application on the basis that M was back in her care and on the following day those proceedings were dismissed by the Polish court. The domestic Polish proceedings brought by both parents have continued, with hearings taking place in December 2019 and January and March 2020.

On 16 July 2019, the father applied to the Polish Central Authority for the return of M to Poland. Standard directions were given on paper on 30 October including one for the mother to file "an answer and any evidence in support of that answer". On 13 November, a hearing took place before a Deputy High Court Judge. The father was represented by counsel and the mother was in person. A direction was made for Cafcass to prepare a report addressing M's wishes and feelings in respect of returning to Poland and the question of whether M was settled in England.

The Cafcass Officer did not consider that M objected to returning to Poland. As to settlement, she said this:

"42. M has a family life and school life in England, he has friends and has adapted to the change in his country of residence. It is my assessment that he has achieved a settled status in the physical sense of being established in his community, and in an emotional and physical sense, feeling secure and stable in his current life. The court will question how a child can be considered settled when residing in the country prevents them from a relationship with the absent parent. Whilst I recognise and accept that there is an element of his psychological settlement missing, given the absence of a regular and clear pattern of time with his father, I do not believe that this has prevented him from establishing a stable life in England."

First Instance 
Father contended that there was an unlawful retention of M and therefore a breach of his custody rights under Article 3. He contended the relevant date was either a date in November, post 10 November 2018, after the mother's engagement or, in the alternative, a date in April 2019 when the mother removed M from Poland and brought him back to England. Father said that no exception applied in this case and therefore the Court was mandated to order M's return to Poland.

Mother did not file a formal answer, but it was clear that mother was asserting father had either consented to or acquiesced in M remaining in England.

The Deputy HCJ found that the father was exercising rights of custody in July 2018 when M first came to England. In relation to habitual residence, he directed himself to the summary in Re B (A Child) (Custody Rights: Habitual Residence) [2016] 4 WLR 156. He said that there would be a wrongful removal or retention of M unless his father consented to the requisite standard. He noted that the burden was on the mother to establish an exception on the balance of probabilities.

In the course of the judgment, the judge made a number of findings of fact, which are set out in full at paragraph 15 of the appeal judgment. It can be seen that the judge reached the following conclusions:

(1) There had been a repudiatory retention in November 2018, alternatively in May/June 2019.

(2) M was habitually resident in Poland in May 2019 (there was no other express finding about habitual residence).

(3) The father had not consented to M's retention in England.

The judge did not address (i) aquiescence, (ii) the (unpleaded) possibility of retention having occurred in August 2018, or (iii) settlement.

The judge was requested to, and gave, an elaboration of his conclusions regarding habitual residence.

Grounds of Appeal

Mother's grounds of appeal were as follows:

(1) The judge was wrong to identify retention as having occurred in November 2018. He should have considered whether there had been a wrongful repudiatory retention in August 2018, but he did not correctly analyse the critical authority of Re C (above). He misdirected himself by referring to the irrelevant question of whether and when the mother had formed an intention to remain 'permanently' in England.

(2) Had the judge found a retention in August 2018, the question of settlement would have arisen.

(3) Even if the judge was right about retention having occurred in November 2018, he did not consider the law in relation to acquiescence or analyse habitual residence. Consent and acquiescence are mutually exclusive concepts, but the judge, insofar as he addressed acquiescence at all, elided it with the test for consent. He was not referred to, and did not apply, the key authority of Re H (Minors) (Abduction: Acquiescence) [1998] AC 72.

(4) If retention occurred in May/June 2019, the judge's analysis of the issue of habitual residence was inadequate in his judgment and flawed in his clarification. He did not explore M's connections with England in a child-focused way and he gave excessive weight to matters that were irrelevant.

(5) Given the settlement report and the length of time that M has been here, and his bond with his older half-sibling, it would be intolerable for him to be returned to Poland; alternatively, and more realistically, the sibling bond should be taken into account in exercising a discretion not to return if a defence was made out.

Decision
Whilst acknowledging that the Deputy HCJ was handicapped, in contrast to the expertise available to the Appeal Court, by the fact that the mother acted in person, the Appeal Court reached the conclusion that he did not sufficiently engage with the issues which had to be addressed in order for the father's application under the 1980 Convention to be properly determined.  As to the three main issues the Appeal Court determined as follows:

Retention: The critical issue when determining whether a repudiatory retention has occurred is whether, as set out in Re C, one parent has acted in a way which repudiates the rights of custody of the other parent. Whilst a decision by one parent to make the stay in the new state permanent rather than temporary, as the parents had agreed, could form part of a repudiatory retention, it is not a necessary feature. The judge did not address the possibility of retention having occurred in August 2018.

Acquiescence
: The Appeal Court highlighted that there is a clear distinction between consent, on which the judge focused, and acquiescence which was not addressed by the judge in any sufficient detail. The Appeal Court also saw force in the submission on behalf of the mother that, by formulating the issue during the hearing as being whether the father had consented to M living in England permanently, the judge did not enable the mother to advance her case that the father had acquiesced in M's remaining in England. The legal approach to acquiescence remains as set out in Re H.

Habitual residence
: The Appeal Court found that the judgment, including the clarification, does not contain a sufficient analysis of the relevant factors necessary to explain, or indeed support, the judge's conclusion as to M's habitual residence, and the judgment contains no express finding as to where M was habitually resident in November 2018. The Deputy HCJ's conclusion that "M's degree of integration in England was not such that his habitual residence in Poland had changed to England" is unsupported by any analysis which focuses on the position from M's perspective. The factors referred to by the judge were almost entirely directed to the mother's position, in particular her intentions and whether she had decided to stay permanently in England. The Appeal Court reiterated that habitual residence requires the court to undertake a sufficiently broad analysis of all the circumstances relevant to the child's degree of integration in the state or states in which he/she is said to be habitually resident. Quoting from A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2014] AC 1 at [48] and Re R (Children) (Reunite International Child Abduction Centre and others intervening) [2016] AC 76 the Appeal Court also notes that parental intention is merely one factor; and that it is stability not permanence which is relevant. It is therefore the stability of the residence that is important, not whether it is of a permanent character. There is no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely.

The Appeal Court allowed the appeal, remitted for rehearing, and, subject to the way in which the parties put their cases at the rehearing, formulated the following questions which will likely to require determination:

(1) At what date did the mother retain M in England?

(2) At that date, where was M habitually resident?

(3) If M was habitually resident in Poland at that date, did the father subsequently acquiescence in the retention (this would seem to be more likely than whether the father consented in advance to the proposed retention)?

(4) If acquiescence (or consent) is established, should M nevertheless be returned to Poland?

(5) If the retention took place more than one year before the issue of proceedings on 29 October 2019, is M now settled in his new environment?

Summary by Emily Ward, Barrister & Deputy Head of Family at Broadway House Chambers.
Read the full judgment of S (A Child) [2020] EWCA Civ 923 on BAILII