At first glance at least, the judgment in A v D & Others is a worrying read. It appears that a mother who has blatantly breached an undertaking that she gave to the court has nevertheless been rewarded for her behaviour, but is it as simple as that?
The facts of the case were that the father is English and the mother is Polish. They had a short relationship, which ended before their daughter was born in this country, in December 2011. After her birth the child lived with the mother and the father had infrequent contact with her.
In April 2012, the father, concerned that the mother might remove the child to Poland, issued an application seeking a prohibited steps order preventing her from removing the child from the jurisdiction. The application was heard on 3 May 2012, when the mother gave evidence on oath stating that, if she were permitted to take the child to Poland for a visit between 14 May 2012 and 16 July 2012, she would return the child to this jurisdiction at the end of that period. On the basis of the mother’s undertaking to the court to return the child to this country at the end of the visit, the court made an order permitting the mother to remove the child to Poland for the purposes of a holiday between 14 May and 16 July 2012.
Shortly after arriving in Poland, the mother applied to a court in that country for a custody order and subsequently wrote to the English court stating that she did not intend to return. The father made an application under the Hague Convention for the child to be returned to this country, but that application was dismissed by the Polish courts.
On 30 April 2014, the father made an application in the existing English proceedings seeking an order committing the mother for contempt of court, an order for parental responsibility and a contact order. The application was transferred to the High Court and listed before Mr Justice Baker in July 2014 to consider as a preliminary issue whether or not the court had jurisdiction to entertain the application. He held that the court did have jurisdiction, but indicated that he proposed to consider whether the court should exercise its power under Article 15 of Brussels II Revised to transfer the case to Poland.
The issue of transfer went back before Mr Justice Baker on 2 October, although he did not hand down his judgment until 9 December. The mother had been ordered to attend the hearing, but did not do so and was not represented.
Opposing the transfer, counsel for the father argued that this was a blatant case of child abduction and that it was not right for a court to reward a party who had acted unlawfully. However, Mr Justice Baker found that the welfare of the child dictated that the case should be dealt with in Poland. The child had been living there for two and a half years and her mother would clearly not cooperate with any proceedings in England, making it very difficult for the English court to make a contact order in the father’s favour.
Mr Justice Baker agreed that the child had been wrongfully retained in Poland and that the mother had blatantly breached her undertaking, but said that the court had to take a pragmatic approach – whatever the views of the English court regarding the retention of the child in Poland, the reality was that she would not be returned. Her best interests would therefore be served by the proceedings taking place in Poland. The English court will therefore request the Polish court to assume jurisdiction in respect of the father’s application.
I’m not sure that the transfer can really be described as a ‘reward’ for the mother’s actions, as the father’s application remains to be determined in Poland. However, if it can, this case shows that the welfare of the child is more important than any issues of rewarding a party for acting unlawfully.
To read the full judgment, click here.
Photo of the Polish flag by Chris via Flickr