Q & V (1980 Hague Convention and Inherent Jurisdiction Summary Return), England and Wales High Court (Family Division), Judgment, Law, casemine.com

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Advocates

Cliona Papazian (instructed by Makin Dixon Solicitors) for the Applicant
Christina Omideyi (instructed by Wilson Solicitors) for the Respondent

Judges

MR JUSTICE WILLIAMS

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Q & v. (1980 Hague Convention and Inherent Jurisdiction Summary Return)

Smart Summary

Factual and Procedural Background

The case concerns two children of the Applicant Father and the Respondent Mother: the elder child, Q, born in 2002 (aged 17), and the younger child, V, born in 2006 (aged 12). Both children were habitually resident in Poland until their removal by the Mother around August 2018. The Father, residing in Poland, applied for Q's return under the inherent jurisdiction of the High Court and for V's return under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

The parents have been in conflict over the children’s arrangements since their separation in 2010. A Polish appellate court order in August 2014 determined the children should live with the Father, but the Mother removed V from the Father’s care in April 2018, and subsequently Q also came to live with the Mother. The children were brought to England by the Mother in August 2018 and have since been living with her and her partner. V started school in England in December 2018, and Q has been attending an English language school since January 2019.

The proceedings in the English court commenced in November 2018, with various directions made regarding evidence and representations. The Mother indicated reliance on Article 13(b) of the Hague Convention (grave risk of harm or intolerability) as a defense, and the court appointed a Cafcass officer to assess the children’s maturity, views, and any objections to returning to Poland. The hearing was adjourned and eventually came before the presiding judge in January 2019.

The court faced challenges including absence of interpreters at the hearing and issues concerning whether Q, as a 17-year-old, should be joined as a party with separate legal representation. The Cafcass officer conducted interviews with both children and prepared a report on their views and welfare.

Legal Issues Presented

Whether the children, Q and V, should be returned to Poland under the 1980 Hague Convention and the inherent jurisdiction of the High Court respectively.
Whether the Mother has established exceptions to return under Article 13(b) of the Hague Convention, specifically grave risk of physical or psychological harm or intolerability.
Whether the children’s objections to return, especially given their age and maturity, should be taken into account and to what extent those objections affect the court’s discretion.
Whether Q, the 17-year-old child, should be joined as a party with separate legal representation.

Arguments of the Parties

Respondent Mother's Arguments

Following separation, the children lived with her and a psychologist assessed her as properly caring for them.
She alleged the Father had been convicted of serious crimes and was hostile and neglectful towards the children, including neglecting V’s medical needs.
She claimed the Polish court proceedings violated her rights and failed to properly consider the children’s views.
The children opposed living with the Father and the Mother alleged harassment and abduction attempts by the Father.
She asserted that returning the children would expose them to grave risk of harm due to neglect, conflict, and separation from her.
She alleged ongoing investigations into psychological abuse by the Father and claimed the Father delayed Hague proceedings for financial advantage.
She contended the children should remain in England for their welfare and to avoid separation.

Applicant Father's Arguments

The children were habitually resident in Poland and the Mother wrongfully removed them.
He denied all allegations of neglect and abuse, stating investigations dismissed the Mother's claims.
He asserted the children had regular contact with the Mother while living with him and that V’s medical issues were properly addressed.
He alleged the Mother influenced the children’s views and that their objections were not authentically their own.
He emphasized the importance of compliance with Polish court orders and the need to deter wrongful removal.
He offered undertakings for the children to reside initially with paternal grandparents to ease transition if returned.
He argued for return under the inherent jurisdiction (Q) and the Hague Convention (V), emphasizing the children’s welfare and policy considerations favoring return.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re D (Abduction: Rights of Custody) [2006] UKHL 51	Clarification of Article 13(b) grave risk of harm exception under the Hague Convention.	Used to explain the threshold for grave risk and the burden of proof on the party opposing return.
Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27	Application of Article 13(b) and consideration of separation of siblings as intolerable situation.	Referenced in assessing the impact of separating siblings and the intensity of the risk required.
Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10	Further guidance on the application of Article 13(b) and protective measures.	Supported the court’s approach to evaluating risk and the availability of protective measures.
C v C (Abduction: Rights of Custody) [1989] 1 WLR 654	“Coach and four” doctrine regarding self-created risk in abduction cases.	Referenced and substantially ameliorated; court rejected that self-created risk by the Mother precludes Article 13(b) defense.
TB-v-JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515	Clarification on the amelioration of the “coach and four” doctrine and assessment of grave risk.	Supported the court’s rejection of the notion that self-created risk bars Article 13(b) defense.
S-v-B (Abduction: Human Rights) [2005] 2 FLR 878	Human rights considerations in Hague Convention cases.	Considered in evaluating risk and the court’s discretion.
Re M (Republic of Ireland)(Child's Objections)(Joinder of Children as Parties to Appeal) [2015] 2 FLR 1074	Framework for assessing child’s objection under Article 13 and joinder of children as parties.	Guided the court’s assessment of Q and V’s objections and the decision on Q’s joinder.
Re F (Child's Objections) [2015] EWCA Civ 1022	Endorsement of principles regarding child's objections under Article 13.	Supported the court’s approach to weighing the child’s views in discretion.
Re LC (Reunite: International Child Abduction Centre Intervening) [2014] 1 AC 1038	Guidance on joinder and representation of children in Hague Convention proceedings.	Considered in deciding whether to join Q as a party with separate representation.
Mabon v Mabon [2005] 2 FLR 1011	Considerations in private law proceedings for joinder of children.	Referenced in the court’s analysis of joinder under FPR 16.2(1).
C (Children) (Abduction: Article 13 (B)) [2018] EWCA Civ 2834	Protective measures and their role in Article 13(b) defenses.	Informed the court’s consideration of protective measures mitigating risk.
Re J (Child Returned Abroad: Convention Rights) [2005] 2 FLR 802	Application of inherent jurisdiction for summary return based on child's welfare.	Guided the court’s welfare assessment for Q’s return under inherent jurisdiction.
In Re M [2007] UKHL 55	Exercise of discretion in Hague Convention cases and child’s objections.	Used to frame the discretion and weight to be given to objections and welfare factors.
F-v-M [2008] 2 FLR 1263	Requirement for compelling evidence to challenge foreign court competence or impartiality.	Applied in rejecting Mother’s allegations against Polish authorities.

Court's Reasoning and Analysis

The court began by confirming the children’s habitual residence in Poland and the wrongful removal by the Mother, thus engaging the 1980 Hague Convention for V and the inherent jurisdiction for Q. The Father’s right to custody was recognized by Polish court orders.

The court carefully considered the Mother’s defenses under Article 13(b) of the Hague Convention, which requires a grave risk of physical or psychological harm or an intolerable situation to prevent return. The court found that the Mother’s allegations of neglect and harm were not substantiated by credible evidence, with investigations by Polish authorities dismissing these claims. The medical evidence did not support the existence of serious health risks to the children.

The court also analyzed the children’s objections to return. While both children expressed a desire to remain in England, the Cafcass officer’s report indicated their views were heavily influenced by chronic parental conflict and the Mother’s position. The children’s expressed objections were not considered fully authentic or determinative, especially given their prior positive relationships with their Father and extended family in Poland.

Regarding the separation of siblings, the court acknowledged the importance of keeping Q and V together and found that it was likely they would return together, mitigating concerns of separation harm.

On the issue of joinder and separate representation for Q, the court applied the relevant procedural rules and case law. It concluded that, despite Q’s age and maturity, separate representation was not in his best interests due to his apparent wish to avoid involvement in the parental conflict and lack of strong desire to instruct a lawyer. The court balanced Q’s autonomy, welfare, and the potential harms of increased involvement in litigation.

The court weighed welfare considerations, policy factors favoring prompt return, and the importance of comity with Polish courts, which had long-standing involvement with the family. It took into account the Father’s undertaking that the children could initially reside with paternal grandparents to ease transition.

Ultimately, the court concluded that the exceptions under Article 13(b) and the child’s objections defense were not established on the balance of probabilities. The children’s welfare was best served by return to Poland, where the courts could further consider their long-term arrangements.

Holding and Implications

The court ordered the return of V to Poland pursuant to the 1980 Hague Convention and the return of Q to Poland pursuant to the inherent jurisdiction of the High Court.

The court emphasized that the children should initially reside with their paternal grandparents to facilitate a managed return and transition. No time limit was placed on this arrangement, allowing flexibility for the children to return to their Father’s care or remain with grandparents pending further welfare assessments by Polish courts.

The decision enforces the principle of prompt return of wrongfully removed children to their country of habitual residence, upholding the authority and decisions of the Polish courts. The court rejected the Mother’s defenses and found that the children’s expressed objections were influenced by parental conflict and not sufficient to prevent return. No new legal precedent was established; the ruling applied established principles of the Hague Convention, inherent jurisdiction, and child welfare jurisprudence.