Rewarding a party who has acted unlawfully?

Family Law|December 11th 2014

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

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Comments(22)

  1. Paul Manning says:

    It is So damn typical of you Marilyn to sympathise with the mother in this case and not with the father, normal practice for you. I suppose then the father will just have to stay quiet and behave himself and not kick up a fuss for his child and wave goodbye, like the good sperm donor he has now become. How on earth you can state that the child’s welfare is paramount in this poor decision, by this crazy judge, I have no idea! I guess your idea of what constitutes the best interests of the child seems to fit only those of the mother, since she seems to have the upper hand here, if its in the interests of the mother then that also is in the interests of the child, how convenient that is. I would have thought that it would certainly be in the child’s best interests to have its father in its life, but we all know that comes last on the list with you. This is a clear case of rewarding the mother for her lies, deceit, and the breaking of our laws and you should clearly say so, but you won’t, because you always side with mothers, we all know that. We fathers are an inconvenience to you, and we all know that you will not represent us as you do mothers. It Must be so hard for you to give us a fair crack of the whip as equals. How does your conscience deal with this: on the one day you do all you can to win a case for a mother, on another day you do not so much for a father, the interests of the child do not come into the matter, and for you its all about winning a case, full stop!

    • Marilyn Stowe says:

      Dear Paul
      Have a look at who wrote that post, it wasn’t me!
      Then take a look at this blog, read how I do express my concern at treatment of men and fathers in family and criminal law, when I think it’s warranted. There is nothing about my views which are “typical” and I doubt you would find many less feminist female lawyers than me.
      Regards
      Marilyn

      • Paul Manning says:

        Thank you for your reply, at least you haven’t blocked me. I will look into what you say here. But surely the case you refer to is tantamount to one robbing a bank, the police knowing who did it, and then doing nothing! It is also unfair that the time taken in this family law case has, as usual, has now been used to say that the child has now been settled in another land, probably made new friends at a new school, etc.. and now these reasons are stupidly considered to be factors in a judge stating that it would not be in the interests of the child to change them. This is the default situation in any family court case, time taken is to the advantage of the resident parent, usually the mother. Time is what destroys so many fathers cases like it did mine. Time taken is a child taken from so many fathers.

  2. Dave says:

    Marilyn.
    Previously you have blocked many males from posting comments on not only this website but also on Twitter.
    I find it rather disturbing that lawyers see family courts as a way of making money. Not one lawyer cares about the welfare of the children. Lawyers see family courts as a cash breeding ground. You on the other hand not only see it as a cash breeding ground, but also an avenue for you to get onto TV and try to raise your own personal profile to make you look good and to show the public that you actually care. If the truth be known, you don’t actually care other than making money for yourself.
    Lawyers like you are blaming LIPS’s for slowing down the court cases…..rubbish! Why would a LIP want to slow things down when that person is fighting to see their children! Doesn’t take rocket science to work out why a lawyer would want to delay matters…..as Jessie J says “It’s all about the money money money”.
    The sooner lawyers are out of the family courts, the better it will be for the children.
    I dare say Marilyn, that seeing that you do not like comments made against you, that you won’t allow this post. Come on Marilyn, lets see your reply to the truths.

    • Marilyn Stowe says:

      Dear Paul and Dave
      It is true I did block abusive comments directed personally at me on Twitter but as on Twitter and here on the blog I happily publish (and respond if necessary) to polite comment even if I disagree. So keep it polite don’t be abusive of me and you will have no problem. I can only repeat I support men and women in family law issues. Always have always will and make no distinction.
      Regards
      Marilyn

  3. Dave says:

    Marilyn.

    No lawyer supports men or women, or even the child. Lawyers are only interested in one thing, well two in your own case, 1. Making money and 2, raising their own personal profile.

    I, like many other people have seen your TV work and I for one, find it very misleading and so far away from the truths. You praise the work of Cafcass, or have done on TV and also praise contact centres. Praising both constitutes towards supporting family court child abuse.
    Through my work in courts myself as a Mckenzie friend, you know, one of those people that is child focused and one a lawyer despises because we’re probably doing a better job than a lawyer and gradually, and thankfully, reducing the numbers of lawyers in court, I have not come across one lawyer that can thoroughly praise the work of Cafcass or in fact, the use of a contact centre.
    Cafcass needs to be shut down and contact centres used for their original purpose…..where the child may be at risk from the other parent, regardless of gender of the parent. You lawyers and Cafcass, are abusing these centres by encouraging their use, just because it suits everyone, other than the child and non-resident parent. And as for making farcicial suggestions that people, well usually the dad, pays for it’s use, it’s a joke within itself. Contact centres are a free process. As for mediation, what a complete waste of time that is, and I for one, can only encourage people to go to one session and ditch it to save time and money.

    Family law needs to change and they only way that it will, is if it is starved of cash. That means reducing lawyers in family courts, ditching mediation as soon as you can and not paying for contact centres.
    Transparency needs to happen! It needs to expose lawyers, Cafcass/social workers and so called expert witness, but in doing so, the childrens names need to be kept out of it. Only then, when the aforementioned is in place, will these children have their rights to family lives, intact.

  4. Paul Midgley says:

    The good old new Status Que Catch 22. This father should sue the Ministry of Justice for negligence. It was they who allowed this to happen. Fathers emotional pain mean nothing to family courts. This type of damage caused by prejudice should be quantified in money. That is all that UK law understands and respects.

  5. Nordic says:

    Paul and Dave,
    I share your disgust at the family law system and the massive vested interests which it feeds, views I often express on this blog. However, I have never personally been blocked nor seen anything that amounted to censorship of comments expressing such views (provided they adopt a mildly civilised tone). This is why I bother to use this blog as an outlet for expressing the dismay that any normal parent must feel when confronted with the grotesque monstrosity that is family law in this country.
    .
    So, while it pains me to defend a solicitor, I think you are being a bit unfair to Marilyn. That also extends to some (but only some) of the views she expresses on the blog which on occasion do take a more balanced stance. In this she contrasts sharply with John, the author of the above post, who appears to live in his own make-believe world. In this world, judges are beacons of intellectual integrity, justice and fairness who grapple with terribly difficult and painful dilemmas, fearlessly fighting for, and protecting, the child. In this world, solicitors, and particularly those who used to scrape a living from legal aid, are unsung heroes motivated by a higher calling to uphold justice (and protect the child). In this world, family law outcomes are unbiased, because they simply reflect gender roles as they exist in society at large and in John’s world this means that mum nurtures and protects the child, while dad makes money and goes to pub. On those rare occasions when mum do misbehave (as in this case) the poor judges therefore have no option but to turn a blind eye as the child’s best interest is whatever interest mum is pursuing.
    .
    I have several times tried to inject a little bit of reality into John’s world, but to no avail. He is incapable or, more to the point, unwilling to see what stares him in the face. As a retired family law solicitor, maybe that reflects a desire to believe that ones career has been spent on something worthwhile, rather than simply making money off families when they are at their most vulnerable.
    .
    I totally agree with you that money, rather than children, families or justice, is what motivates lawyers. However, I do not think that this is something to get all that angry about. Of course Marilyn’s first and primary concern is the financial wellbeing of Stowe. Her firm is a business, not a charity, and It’s purpose is to make money for its owners. Family lawyers are no different to accountants or bankers, and all professional service industries ultimately act in their own financial interest. If left without governance or law, they will end up behaving in a manner which is contrary to the interest of the wider society. For the same reason, it is naive to expect reform to come from within the industry or the judicial. That is like expecting bankers to voluntarily cap their own bonuses. So while we may feel queasy when lawyers try to make out that they are our guardian angels, they are not the root of the problem. The root of the problem is Parliament, which have allowed the most important public policy area of all to become so controlled by vested interests. In contrast to lawyers or other providers of professional services, our elected representatives should be expected to act in society’s interest. Their abject failure to do so is the root cause of tremendous damage inflicted by our family law on children and families.

    • Paul Manning says:

      Nordic, thanks for that, and I mean this with utter respect, but any father that has spent 5 years of his life in the family courts know that it is all about CASH £££. That is your case in a nut shell really, but we all knew that anyway. You do if you are awake to what’s on the Lawyers gravy train menu, like Dave and me are. Respects. From The sperm donor Dad, otherwise known as “The Haywain protester”.

      • Nordic says:

        Paul, actually my last point (apart from having a go at John, which is a favourite pastime of mine!!) was that we should stop focussing on the lawyers and start focussing on the government and parliament because that is where the responsibility lies and that is the only place from where proper legislative solutions can come. Hence, ultimately this is about voters and I find it curious that family law remains such a fringe issue here. You could never get away with such a blatantly biased system in the Nordics. A PM who spoke about feckless fathers the way Cameron did would soon find himself without a prime ministerial taburet. Why is this not a much much bigger issue here?

  6. Lars says:

    I was curious to read comments after this post but am surprised to see they moved away from the main topic, which is should the court reward someone who acts unlawfully. I find this court order worrying in that it sends a strong signal that it is ok to abduct a child and that there would be no consequences.
    As mentioned, it is quite likely that the polish court will consider that it is best for the child to stay there and delays in proceedings will only strengthen that position. I wouldn’t be surprised if many similar cases occurred as a result.

    • Paul Manning says:

      Here here Lars! Exactly my point. The original undertaking made by the mother to return from her holiday in Poland, given to the judge, had evidently no underlying power enshrined in it. In other words it was just words on paper that meant nothing in law and could not be enforced. Does this not remind us of contact orders made by judges on behalf of fathers to see their kids, only for us to realise that they are worth just about as much as toilet paper? Yes judges make thousands of orders but they have very little interest in making them stick later on! My ex was ordered to make sure that I received all my sons school reports, that was the undertaking she gave, I have not received one! this in over 4 years of asking, is the judge interested? of course not! The court is not bothered about making sure that its orders are kept, that being the case, how is this in the interests of the child? I now tell all fathers not to bother with the family courts, they will be raped of their cash, raped of their sanity and unfortunately raped of their dignity and then their children. I tell them to wave goodbye to their kids and get on with their lives, yes as sad as that is, that is my advice. The judges don’t care, the solicitors don’t care, no one cares, so why the hell bother? The world has gone mad, I often wonder if our government wants it this way, a fatherless society. Anything goes these days and after all the Sculpture outside of Birmingham city Library shows “The typical British family”. IE… 2 sisters, one heavily pregnant, holding the hands of two male boys… not one sight of a father, NOT ONE! This is what we have come to, yes our country backs the fatherless society by paying for sculptures that show that we are not important any-more. Welcome to the UK, the home of the sperm donor, just like me.

    • Nordic says:

      Lars and Paul,
      Getting back to subject of the post, I agree this judgement sets a terrible precedent. Even if we imaging that the child actually is well settled in Poland, allowing illegal behaviour to pass without consequence in one case creates precedents for every case that follows. This judgement essentially gives parents a judicially approved template for how to get away with abductions.
      .
      As you note Paul, the similar persistent failure to enforce normal contact orders actively promotes contact denial. It is hardly a coincidence the the number of parents who loose contact permanently following divorce is a few percentage points in the Nordics, but here often reported as being somewhere between 20 and 40%. While not an unknown problem in the Nordics either, contact denial er dealt with much more firmly and within a well defined process. The result is not loads of resident parents languishing in prison. The result is less contact denial because parents know such behaviour will have unpleasant consequences for themselves.
      .
      Where I completely disagree is when you Paul suggest the right advice is to tell fathers to walk away from the fight and their kids. While I understand and sympathise with fathers who in the end give up, this is defeatist and wrong advice which will only serve to confirm and vindicate the bias and outdated role models to which the senior judicial subscribes. The courts may be unjust, the lawyers dodgy, the cafcas officers biased, but nonetheless you owe it to your kids to throw everything at these obstacles.

      • Paul Manning says:

        Dear Nordic, you misquote me. I never wrote as you stated: “you Paul suggest the right advice is to tell fathers to walk away from the fight and their kids.” that sentence is an inference of my words and I wouldn’t dream of advising any father to walk away from their kids, that is far from what I meant. I myself have never walked away from my son even though I spent 5 years battling for him and putting myself through ill health and being out of pocket. What I meant was that there are other ways to let your kids know that you are still there for them, besides going to the fighting pits of the shabby family courts and getting no justice. Walking away is not an option, not if you love your child as I love mine, but if I went back to the courts I know for sure that I would have a nervous breakdown and end up in some mental hospital. I even had thoughts of topping myself, such was the hell that the courts put me through, I can’t and won’t go to the courts again, even though that way is open to me. No, I believe that a system that is broken cannot be seen as trust-able or reliable in any way, therefore why should I trust it? I believe that the problem is so severe and so unjust that it requires direct action, direct protest. This is why I glued A photo of my dear son on the world famous Haywain painting and was prepared to go to prison for what I believe in. And no, I am not some nut case that goes around vandalising art works, with careful planning I avoided harming the Hay Wain. My son will know that I still continue to fight for him, he will know it by looking at the world network that I acted for him to show my love for him. However, I will be damned if I should ever decide to go back to the family courts, I refuse to! Where they debase you, belittle you, fleece you, lie about you, humiliate you, take no notice of you. Patronise you, look down upon you, treat you as though you were a monster instead of a loving father. Now! tell me that I should advise other fathers to go there so that they can feel the same? no way matey. NO DAMN WAY! My advice to them is to try and change the crooked system, not from within by taking part in it, but from without, by protesting, just like the great Jolly Stanesby as done, as the brave Tim Haries has done, (All in the public domain and easily traced in the press, so no need to leave these names out Marilyn, I know them personally, they will not object). There is no way, not with the shocking family court experience I have had, that I can with any good conscience advise any father to go there, it would be wrong. Get out there and protest and stand up for those you love in other ways, just as Bob Geldolf has said to do.

  7. Anthony McGrath says:

    I recently raised concerns with Parliament regarding issues such as the above. Since freedom of movement, obviously, many multi country relationships have failed with children involved. As British citizens we need more legal president made that addresses such situations, I am not aware that we have such detail within the Children’s Bill?? I call it proactive and as such, ideally, would reduce such an occurrence. Laws need to be based upon equality, as such, If one parent takes a child from the family home without the consent of the other parent it should be construed as kidnap. Women are allowed to undertake such actions and the law is fundamentally biased toward the female gender. As men, we all need to campaign for such recognition.

  8. Lars says:

    I thought to take a child abroad you needed a Leave to Remove order.
    So obviously each case is different and in this case the child was less than 1 year old. Had the child been older, at school etc the judge might have ruled completely differently.
    I would agree with Paul that I wouldn’t advise anyone not to fight but now it is a very personal decision as it can have devastating consequences on one’s health, social life and finance. I am lucky that i see my child often but had to fight for years for it and it’s a sad state of the world that any parent, father or mother, should have to fight to see their child.

  9. Anonymous says:

    Lars,

    If you are male and have ever traveled with a kid, you will know that you need to carry documents and all sorts of permissions to be doing this, and that in spite of that you will still often find yourself upon arrival at destination in some back room being interrogated by uniformed brutes, with your kid being interrogated too.

    If you are male and have ever traveled with another woman and her kid from another relationship, you will know that you just get the wave-through.

    That in a nutshell explains this situation, I think.

  10. Anthony McGrath says:

    Disagree anonymous. I have travelled to Spain, Cyprus and Turkey with just my son, as from age 3, now 6. Never once stopped.

  11. StuG says:

    Reading the article Bolch has been as selective in his interpretation as ever.

    Dad would have been on the birth certificate but needed to apply retrospectively for Parental Responsibility. Indicates a non-litigious father who knew nothing of applicable law until he had to apply as part of the raft of measures needed to get the child back from Poland. A warning to all: get the PR done early, especially with a foreign mother. Especially Polish, it seems.

    Same goes for the Prohibited Steps Order. ‘Infrequent’ contact…..yes, Bolch, but why? Was it being with-held by the mother? A lack of PR, plus with-holding contact? The pattern is building. Solution: get to court the moment the child of a foreign mother is born to get the PSO stamped. Get the Warning Order front page. Doin’ it retrospectively ain’t no good. Get the contact issues done early in the same application. Build the contact to a level where the child is attached – then the relationship might be protected.

    Holidays to the foreign jurisdiction with the foreign parent alone: never, unless a bond big enough is left behind.

    Don’t be fooled by Hague or Brussels II. They give no real protection: they give in some cases the illusion of protection for the child. There are too many cop outs. Especially when interpreted in the UK. And Poland, and probably elsewhere. Get the PSO, PR and contact done before kidnap becomes a problem, and these Treaties might help.

  12. Anon says:

    Great post StuG. I had the PSO made long ago, the only thing I have not applied is the bond when she travels to her place of birth with my child. Can you please explain for us lay people the easiest method for achieving such???

    • StuG says:

      PSO applications go straight to the High Court. A written application should be enough for a decent High Court judge to move on. Concerns me about the PR tho, as I seem to remember that is specifically mentioned in the text of the Treaties.

  13. Luke says:

    “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.”
    ====================================================
    .
    Well you may not John, but any reasonable person would, this is an idiotic decision that sets an awful example – basically it says that if you are a mother with a child then disobey English courts and you’ll get away with it.
    I used the word ‘example’ and not ‘precedent’ because women have got away with such matters many times before with English courts – particularly on the matter of contact.

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