Polish mother ‘must return children’ to father in England

Children|February 6th 2018

A Polish psychologist who refused to return her two children to their father in Brighton has failed in her bid to overturn a ruling that they must be sent back to him.

The youngsters in question are now aged four and five. Their father is in fact Hungarian and works in the closely allied field of psychiatry. The parents met at a professional conference and were married in Hungary.

Not long afterwards, the family moved from the continent to Bristol. LM had already been born by this point. Later they relocated to Brighton and bought a home.

The marriage began to grow strained and the mother spent increasing long periods of time back in Poland. The father began studying for a PhD at the University of Brighton. The couple hired a nanny and found a place for LM at primary school.

Later that month, however, the mother took another trip back to Poland with the children for a holiday. But she did not return at the end of the trip. Instead she told the father that she wanted a divorce and applied for full custody of the children at the local family court in the central Polish city of Łódź.

In November, following a succession of hearings, High Court Judge Mr Justice Mostyn ruled that the English courts had jurisdiction in the case and that the children should be returned to the UK by 15 December, primarily on the grounds that their habitual residence had been England and Wales at the time the mother retained them in Poland. The mother did not participate in this hearing, even by video link or telephone, but she did apply to have it set aside, principally on the basis of Rule 27.5 of the Family Procedure Rules. As the name suggests, these are a set of operating principles for the Family Courts.

Rule 27.5 concerns “Application(s) to set aside judgment or order following failure to attend”. Amongst other conditions, it requires the applicant to show that they had a good reason for not attending; that they had a reasonable prospect of achieving a different result had they participated; and that they acted promptly on learning of the hearing.

Mr Justice Mostyn accepted that the mother had acted promptly but considered that there had been no reasonable prospect of success had she participated.

The mother attempted to persuade him the Polish courts in fact held jurisdiction in the case because the first application had been lodged there. The father disputed this and Mr Justice Mostyn was unpersuaded that his initial decisoin had not been correct.

He concluded that he was:

“…satisfied that the mother has no reasonable prospects of success of disturbing my finding that on 04 July 2016, with the issue of proceedings in Brighton, and certainly by 14 July 2016 with the dismissal in Poland of the mother’s application of 02 June 2016, the English court had priority under articles 16 and 19 of [Brussels II Revised, a EU regulation which sets down rules for family cases involving more than one member state). It therefore follows that she had no reasonable prospects of success in relation to this issue at the original hearing before me had she chosen to attend.”

You can read the ruling here.

Photo of Łódź, Poland, by Krzysztof Niewiadomy via Wikipedia under a Creative Commons licence

Author: Stowe Family Law

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