A v P

Factual and Procedural Background

This opinion concerns an application initiated by way of Originating Summons dated 9 March 2011, under the Convention on the Civil Aspects of International Child Abduction (the Convention) incorporated into English law by the Child Abduction and Custody Act 1985. The application was made by the father for the return of a small female child, identified by her initials MAT, born on 10 August 2007, to the Republic of Poland, which the father asserts is her habitual residence. The mother resists the application, asserting that MAT is habitually resident in England and Wales. The principal issue for determination is MAT's habitual residence.

The factual background reveals a complex history of the parents' movements and residency. The father, aged 30, is Egyptian by nationality but born in Saudi Arabia; the mother, aged 23, is Polish. MAT was born in Poland and holds only a Polish passport. The parents married religiously in Egypt and remarried in Egypt in 2007 due to non-recognition of their marriage in Poland.

The family’s movements included living in Egypt before MAT's conception, moving to Poland in June 2007, visits to Egypt and Poland, relocation to England in September 2008 with MAT left in Poland but visiting England, returning to Poland in February 2009, and various work-related travels by the mother between Poland and England. MAT and the father moved to England in June 2010 to join the mother. Subsequently, the father removed MAT from England to Egypt without the mother's consent in September 2010. The mother recovered MAT from Egypt in October 2010 and returned with her to England. Since then, the mother and MAT have lived in England, with occasional visits to Ireland and Poland.

The father's visa to remain in England expired or was revoked by late 2010, and he currently resides in Poland, pursuing Polish citizenship and medical qualification recognition. The father denies any mutual intention to permanently reside in England, asserting that MAT's habitual residence remained Poland.

The mother filed a defence denying the Convention’s application, asserting MAT's habitual residence in England and Wales since April 2010, claiming the father's abduction of MAT to Egypt and subsequent acquiescence to MAT's retention in England.

Legal Issues Presented

1. Whether MAT was habitually resident in Poland or England and Wales at the relevant time.
2. Whether the removal or retention of MAT was wrongful under Article 3 of the Convention.
3. Whether any defences under Article 13 of the Convention, including acquiescence or consent, apply to prevent MAT's return.

Arguments of the Parties

Father's Arguments

• MAT's habitual residence remained Poland throughout the relevant period.
• There was no mutual or unilateral intention to permanently reside in England.
• The removal of MAT to Egypt was in response to the mother's expressed wish to separate and the father's anticipated deportation from England.
• The father's visa to remain in England was temporary and had expired or been revoked.
• No acquiescence to MAT's retention in England occurred as the father was unable to return due to visa issues and actively pursued legal remedies.

Mother's Arguments

• The Convention does not apply because MAT became habitually resident in England and Wales by April 2010.
• The parents had a joint intention to reside permanently in England with MAT.
• The father abducted MAT from England to Egypt without consent.
• Following MAT's recovery, the father acquiesced to her retention in England by not opposing the mother's return with MAT or maintaining contact.
• Evidence of severance of ties with Poland, such as selling possessions, terminating tenancy, and abandoning jobs, supports habitual residence in England.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by reiterating the purpose of the Convention to ensure the swift return of wrongfully removed or retained children to their habitual residence for welfare decisions. The court accepted the father's rights of custody under Polish law and the Convention's applicability.

In assessing habitual residence, the court emphasized that it is a question of fact dependent on the particular circumstances and that with married parents, a unilateral change of habitual residence is not permissible. The court carefully reviewed the factual matrix, including the parties’ movements, intentions, and documentary evidence.

The court found no mutual agreement in 2010 for the family to permanently reside in England. Although the mother appeared more inclined to settle in England, the father’s evidence was credible, showing an intention to maintain Poland as habitual residence. The court noted that factors cited by the mother to support habitual residence in England were inconclusive and also applicable to prior periods when habitual residence was held to be Poland.

Significant weight was given to two documents generated by the mother: a Polish divorce petition dated November 2010, which identified her residence in Poland and made no mention of England; and a Polish authority’s decision to discontinue proceedings to withdraw the father’s residence permit in Poland, initiated by the mother. These documents were inconsistent with the claim that the mother and MAT had acquired habitual residence in England.

Regarding acquiescence, the court concluded that the father did not acquiesce to MAT's retention in England. His inability to return due to visa issues and his active legal steps negated any inference of acquiescence.

Ultimately, the court determined that MAT’s habitual residence remained Poland and that the removal/retention was wrongful under the Convention.

Holding and Implications

The court's final decision is that MAT should be returned forthwith to Poland for her welfare to be determined by the courts of that country.

The direct effect is the immediate return of MAT to Poland and continuation of her care under her mother until the Polish courts make further welfare decisions. The court did not investigate the merits of custody or contact arrangements, emphasizing that these matters fall within the jurisdiction of the Polish courts. The decision does not set new precedent but applies established principles of the Convention and relevant case law to the facts presented.