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June Venters QC invited to give speech in Poland

International Child Abduction

June Venters QC was invited to attend Poland last week to deliver a speech in relation to International Child Abduction.

SPEECH POLAND

M'j partner i ja dziękuję za przyjęcie nas do tego wspaniałego kraju [My partner and I thank you for welcoming us to this wonderful country].

As a visitor from England I cannot begin to talk to you about the English legal system without immediately referring to what we in England refer to as BREXIT.

This is an abbreviation for "British exit," which refers to the June 23, 2016, referendum whereby British citizens voted to exit the European Union.

Our Prime Minister recently spoke about the relationship we have with our European neighbours whom she described as “our close friends, allies and trading partners” She was clear that the Brexit vote was not with the intention of damaging that relationship with our European neighbours but was instead and in part to enable Britain to pass its own laws and to govern itself. She was also clear that in leaving Britain this will not change our determination to continue to play our full part in promoting peace and prosperity around the world.

Focussing in this speech on the law I thought it may be interesting to clarify that as part of Britain’s withdrawal from the European Union and recognising that the British Prime Minister has said that Article 50 will be invoked by the end of March 2017 that the British Government will soon be placing before its Parliament what will be known as a Great Repeal Bill. This will remove from the statute book the European Communities Act.

This historic Bill – which will be included in the next Queen’s Speech – will mean that the 1972 Act, the legislation that gives direct effect to all EU law in Britain, will no longer apply from the date upon which we formally leave the European Union. The effect it will have is that in the future all laws made in Britain will be made in Westminster and not Brussels. The judges interpreting those laws will sit not in Luxembourg but in courts in Britain. The authority of EU law in Britain will end.

As Britain repeals the European Communities Act, it will convert the ‘acquis’ – that is, the body of existing EU law – into British law. When the Great Repeal Bill is given Royal Assent, the British Parliament will be free – subject to international agreements and treaties with other countries and the EU on matters such as trade – to amend, repeal and improve any law it chooses. Any changes in the law will have to be subject to full scrutiny and proper Parliamentary debate.

Well for Britain there are new times ahead when it comes to the legal system and its laws. However, when looking at International child abduction we have in place International Laws in respect of which countries who have “signed” up to these laws mutually, in the main, observe.

THE CURRENT INTERNATIONAL CHILD ABDUCTION LAW

The Hague Convention

The Introduction to the Hague Convention states that: “Although international child abduction is not a new problem, the incidence of such abductions continue to grow with the ease of international travel, the increase in bi-cultural marriages and the rise in the divorce rate. International child abductions have serious consequences for both the child and the left-behind parent. The child is removed, not only from contact with the other parent, but also from his or her home environment and transplanted to a culture with which he or she may have had no prior ties. International abductors move the child to another State with a different legal system, social structure, culture and, often, language. These differences, plus the physical distance generally involved, can make locating, recovering and returning internationally abducted children complex and problematic.

The Convention of 25 October 1980 on the Civil Aspects of International Child Abduction seeks to combat parental child abduction by providing a system of co-operation between Central Authorities and a rapid procedure for the return of the child to the country of the child’s habitual residence.”

The return mechanism

The principal object of the Convention, aside from protecting rights of access, is to protect children from the harmful effects of cross-border abductions (and wrongful retentions) by providing a procedure designed to bring about the prompt return of such children to the State of their habitual residence.

The Convention is based on a presumption that, save in exceptional circumstances, the wrongful removal or retention of a child across international boundaries is not in the interests of the child, and that the return of the child to the State of the habitual residence will promote his or her interests by vindicating the right of the child to have contact with both parents, by supporting continuity in the child's life, and by ensuring that any determination of the issue of custody or access is made by the most appropriate court having regard to the likely availability of relevant evidence.

The principle of prompt return also serves as a deterrent to abductions and wrongful removals, and this is seen by the Convention to be in the interests of children generally. The return order is designed to restore the status quo which existed before the wrongful removal or protection, and to deprive the wrongful parent of any advantage that might otherwise be gained by the abduction.

A return order is not a custody determination. It is simply an order that the child be returned to the jurisdiction which is most appropriate to determine custody and access. It is clearly stated in Article 19 that a return decision is not a decision on the merits of any custody issue. It is this which justifies the requirement in Article 12 that the return order be made “forthwith”, and of Article 16 that a court dealing with an abduction case is not permitted to decide on “the merits of rights of custody” until it has been decided that there exists a reason for not ordering return, or the application is not lodged within a reasonable time.

The requirements to be met by an applicant for a return order are strict. He / she must establish:

• that the child was habitually residing in the other State;
• that the removal or retention of the child constituted a breach of custody rights attributed by the law of that State; and that
• the applicant was actually exercising those rights at the time of the wrongful removal or retention.

Once the applicant has established a prima facie case under Article 3 b, there remains the possibility of the application being rejected under Article 13 if consent or subsequent acquiescence to the removal can be shown, or there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

Also under Article 13 the objections of the child, if he/she has attained sufficient age and maturity, may be a basis for refusal.

Article 12 gives a discretion not to return a child if the application was made a year after the removal or retention and the child is now settled in his / her new environment. Finally, under Article 20 return may be refused if this would not be permitted by the fundamental rules relating to the protection of human rights and fundamental freedoms of the State addressed.

All the signatories to the Convention [in other words the Member states] have signed up to co-operate and promote the philosophy and objective of the Hague Convention and essentially and subject to a limited number of defences should return the child who has been “abducted” to their country of habitual residence since it is THAT country which should determine the future life of the child – where he or she should live – with whom he or she should live and what amount of time they should spend and in what circumstances such time should be spent with the parent with whom they will not be permanently living.

As well as the Hague Convention which applies world wide to those countries who have signed up to it both inside and outside Europe there is Brussells II Revised - Council Regulation (EC) No 2201/2003 of 27 November of 2003 in force from 1st March 2005.

It is described as "concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility". It applies to all EU member states except Denmark. It contains a number of provisions relevant to Hague Convention applications which take precedence over the Convention as between States to which the Regulation applies. Among other things it:

• Applies to European signatories

• Applies to children up to 16

• Jurisdiction retained by outgoing court for 3 months after move


The Hague Convention of 25 October 1980 on the civil aspects of international child abduction (hereinafter referred to as the ‘Hague Convention’) applies between all Member States and remains applicable although it is now supplemented by the Regulation. Where the Regulation and Convention operate between Member States, with the exception of Denmark, the Regulation prevails. (Article 60(e))

Child abduction

One commentator has written that: “There had been worries that the Brussels jurisdiction would work against the Hague jurisdiction on child abduction. These worries are mostly unfounded. Indeed some commentators feel that BII Revised has strengthened the likelihood of a return. The Practice Guide states that it aims at deterring child abduction and when it does occur, to ensure the prompt return to the member state of origin.

Brussels Is Revised gives a continuing jurisdiction for the state from which the child was taken to deal with the matter and elaborates on Hague (Art 11) e.g. in reference to the wishes of the child. In only two sets of circumstances will the state to which the child has been abducted have jurisdiction (Art 10) other than to direct a return, and neither will arise in cases where there has been reasonably prompt action for the return. Article 10 provides:

It deals with children who have been wrongfully removed or retained as between Member States. The courts of the Member State where a child was habitually resident before the removal or retention retain their jurisdiction until the child has acquired a habitual residence in another Member State and either:-

•All persons having rights of custody have acquiesced; or

•The child has resided in the new Member State for at least one year after everyone concerned knew, or should have known, of the whereabouts of the child and the child is settled in the new environment and one of four specified conditions is met.

It enables the country from which a child has been taken to be able to make orders including for a mandatory return (Arts 11 and 42). BII Revised lays down a framework for determining jurisdiction in the decision of custody of an abducted child. (Art 10). It specifies that an application for a return of an abducted child shall result in a judgment expeditiously and in any event in six weeks of the application, unless exceptional circumstances (Art 11).

BII Revised expects states to put in place arrangements to secure the protection of a child after his or her return following an abduction (Art 11). This will make it less easy to allege that a returned child will be harmed.

If there is an order for non-return from the country to which the child has been abducted, it is sent to the court of the country from which the child was taken, which can invite comments from the relevant parties and then take its own decision. If that decision is that the child should return, the country to which the child was taken must return the child, notwithstanding its own court's contrary decision. (Art 42).”

One change, which affects other parts of Europe more than England, is that a court cannot refuse a return order until it has heard the parent who seeks the return (Art 11 (5)). In England, free legal representation is provided by Central Authorities under Hague. This is not so in some European countries.”

POST BREXIT INTERNATIONAL CHILD ABDUCTION IN BRITAIN

I suggest that freedom of travel and how this will be affected by BREXIT is yet to be determined – but putting that to one side:

The Hague Convention will be unaffected by BREXIT – it is a world wide convention and England will remain a signatory

Brussells II Revised and European laws in relation to International Child Abduction will be affected. However, I return to what I quoted the British prime minister as saying in a recent speech:

As Britain repeals the European Communities Act, it will convert existing EU law into British law. When the Great Repeal Bill is given Royal Assent, Parliament will be free – subject to international agreements and treaties with other countries and the EU on relevant matters to amend, repeal and improve any law it chooses.

Based on this it seems unlikely that BREXIT will cause any drastic changes to be made to the laws which affect International Child Abduction.


PERSONAL EXPERIENCES INVOLVING POLISH CHILD ABDUCTION – IDENTIFYING PARTICULAR ISSUES THAT AROSE

1. MXXXX [case 1]

This was a case that was a little unusual because although the parents and their children were Polish the Father did not live in Poland but instead lived in Belgium where he said he worked

There were five children of the family. The eldest was aged 17 due to her age she was not included in the application. The second was aged 14; the third child was nearly 13 – father was biological father of these three children.

The father was not the biological father of the younger two children although he had treated them as his own. He did not know about their paternity until three years after the birth of the fourth child.

The fourth child was aged 8. Shortly after his birth a cancerous tumour was discovered behind his eyes. Both his eyes had to be removed and he was therefore blind. The fifth child was aged 6. The biological father of the two youngest children had nothing to do with them. He was a friend of the father and lived in the Netherlands. The Judge was of the view this did not go to the Mother’s credit.

8 years earlier the Father went to work in Belgium as a butcher leaving the family in Poland ever since and returned to Poland during holidays – there was a dispute as to how frequent it was but at best once every two three months

The Judge found that the Mother had wrongfully removed the children to England and which the Father had first discovered when he had returned home from Belgium on the last occasion.

As is so often the situation in cases such as this the Mother [abducting parent] sought to rely on Article 13 [“grave risk of harm”] and [“the child’s objections”]

Looking and digressing for a moment at how the “child’s objections” are applied in Britain

Impact of Council Regulation 2201/2003 ("Brussels II Revised")

Article 11(2) of the Regulation provides that it shall be ensured that the child is given an opportunity to be heard during the proceedings unless this appears inappropriate having regard to his age and degree of maturity. This creates an effective presumption in favour of at least ascertaining the views of the child. Chapter IX of the Practice Guide which accompanies the Regulation provides that the exception to the presumption is to be interpreted restrictively. The Regulation does not require the child to be separately represented. His or her views may be communicated to the Court by a social worker (or in England a Cafcass Officer).

Where a court refuses to order the return of a child under Article 13, the Courts in the country of the child's habitual residence are able to reconsider and, if appropriate, override that decision: see Article 11(6). A decision to override a 'non-return' order under Article 13 of the Convention is enforceable under Article 42 (without any defence being available), provided that (a) the child was given the opportunity to be heard, (b) the parties were given an opportunity to be heard, and (c) the court having the final say has taken into account the reasons given by the original court in refusing to order the return of the child under Article 13.

There may well arise cases in which the English courts have no option but to order the return of a child under Article 42, however strongly and cogently that child objects to returning. It is difficult to see how in practice such an order would be implemented, bearing in mind the difficulties that have been encountered in past cases.

In one case a child caused such a scene on board a 747 bound for Australia that the pilot felt he had no option but to turn the plane around and leave the child back at Heathrow. The Court of Appeal upheld the child's objections and allowed an appeal against an earlier order for his return.

In another case, the tipstaff [the court officers in cases such as these] was directed to implement an order by collecting the children and placing them aboard a flight to New Zealand. When he arrived at the children's home, he found that one child was locked in a bedroom brandishing a knife while the other children were locked in the bathroom ready to defend themselves with cricket stumps. The Court of Appeal concluded that its own order was unenforceable and stayed its earlier decision.

Well most recently the British Court of Appeal addressed the approach the British courts are to have when determining whether the child “objects” within the meaning of the Convention:

The case is:

Re F (Child’s Objections) [2015] EWCA Civ 1022
[Note: was called Re N on appeal]

In a judgment issued on 14 October 2015 the Court of Appeal has offered important guidance in relation to the child’s objections defence in cases concerning the 1980 Hague Convention on Civil Aspects of International Child Abduction.

The case concerned four children of the relationship aged between 13 and 9 years old. The mother sought the children’s summary return to Australia pursuant to the terms of the 1980 Hague Convention on Civil Aspects of International Child Abduction. The Judge at first instance determined that the children should be returned to Australia on the basis that they did not “object” to returning.

The father successfully appealed the decision:

Reiterating key passages from Re M (Republic of Ireland) (Child’s Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26 the Court confirmed that the gateway stage of the objections defence is confined to a straightforward and robust examination of whether the whether the simple terms of the Convention are satisfied. An over-prescriptive and over-intellectualised approach is to be discouraged and a straightforward process is required (§33.)

Object means object, that is all (§40.)

The Judge’s discretionary exercise was found to be incomplete and focus too narrow. The Judge failed to consider that there were no arrangements in place for the children’s education and accommodation in Australia and that they would be returning to uncertainty (§44.) The Court of Appeal went onto consider a number of issues during the course of the discretionary exercise (§45 onwards) including:

• the strength of the children’s wishes and feelings;

• the children’s maturity;

• their future relationship with the mother;

• the arrangements which were in place for their return;

• the lapse of time; and the considerable changes that have occurred in the time since they travelled to England.

Weighing up all of the circumstances, including the policy of The Hague Convention the Court of Appeal exercised it’s discretion in this case not to return the children to Australia and the mother’s application for summary return was dismissed.

At §57 Black LJ offers obiter [otherwise described as persuasively but not strictly binding] observations in relation to the judicial meeting with the children and the importance of any such meeting requiring careful planning. In particular it was emphasised that the parties should be permitted to make submissions following any such meeting taking place (§57).

It was also stressed, again, by the Court of Appeal that it is important for consideration to be given at the earliest possible stage in Hague Convention proceedings in relation to how children are to participate (§58).


Returning to the Polish case in which I was representing the Father, the Judge found that the Cafcass officer was clear that the children were expressing a preference and not an objection in convention terms. The children’s views did not have the substance or strength of feeling that might constitute an objection. They were primarily based on the facts that they liked school here where they had made friends. As a consequence this defence failed.

I now turn to the Mother’s second defence “grave risk of harm.”

Essentially the mother had to prove that a return to Poland would place one or more of the children at “grave” risk of physical or psychological harm or otherwise place the child or children in an intolerable position

The Mother relied on the Father’s behaviour and in particular domestic violence which the Father, in the main, accepted. However, the Judge was satisfied that those concerns could all be addressed by “protective measures” being put in place for when the mother and children returned to Poland such as the Father providing various undertakings for example, not to molest or assault the Mother and or children; that he would not seek to remove the children from the Mother’s care without an order from the Polish court and that he would make money available to the Mother so that she could find suitable accommodation for her and the children.

The Mother also sought to rely on what she said was the disparity between a standard of living she would have in Poland compared to that in England where she said she had access to a free national health service and education for the children as well as assistance with her housing. The Judge was not convinced. He was satisfied the children were the beneficiaries of the Father’s health insurance and had seen evidence that the child who required on-going medical treatment had received an excellent standard of medical care in Poland. He was similarly satisfied with regard to the education the children had received in Poland.

Therefore on a strict interpretation of the International convention and regulations the Judge made a Return Order and the Mother returned to Poland.

The M had made an application to the Polish court and which could have effectively overturned the English court’s decision. It didn’t and the Mother and children are now living in Poland.

2. RXXXXXX [2nd case]

This is a current Polish case in which I am involved.

The Mother and Father were both Polish citizens and previously married to other partners. They had one child of their union and he was aged 7 years of age.

Court proceedings in Poland had ordered that the Father was to have regular contact with his son who lived with his Mother.

In March 2015 the Mother informed the Father that she wanted to come to live in England – her older son from her previous marriage was settled in England and she wanted to join him.

Father refused permission for the Mother to live in England and in July without notice to the Father the Mother moved to England. She provided him with no address and made no contact with him on her arrival in England. The Father reported the Mother and child missing to the Polish police.

Three months later and on receiving notification of the Mother’s whereabouts he issued International Child Abduction Proceedings.

[It is worth pausing here for one moment because the Father did not have to wait until he had received notification of the Mother’s whereabouts. He had sufficient awareness of the Mother and child’s likely whereabouts which was England. Had he contacted the Central Authority at that stage we, as his English lawyers could have applied to the High Court in London for a Location Order in order to have traced the Mother’s whereabouts – a Location Order is standard practice and involves us notifying various Government agencies such as the Department of Works and Pensions or Mobile Phone providers of the need to disclose the Mother’s whereabouts which are then disclosed to the High Court’s Tipp Staff. As I previously indicated the Tip Staff are agencies of the Government who have power to meet with the Mother and to seize her passport and that of her child and to thereafter notify those representing the Father so that the Mother can then be formally served with the court proceedings when she is then required to attend a first hearing which usually takes place 7 days thereafter – the process then begins].

Returning to the case I was telling you about – Mother raised economic reasons for not wanting to return to Poland and also raised the defence of the “child’s objections.”

Once again the court was satisfied that the “child’s objections” did not meet the necessary criteria of the Convention. The court was satisfied that the Mother had influenced the child. A Return Order was made and the Father provided usual undertakings as to financial support for the Mother on her return to Poland.

The Mother returned to Poland. However, she did not abide by the court order which was for the Father to have contact with his son and subsequently two months later again abducted him to England where there are now a second set of proceedings yet to be determined.

COMMON DIFFICULTIES WE EXPERIENCE IN RELATION TO POLISH CASES

• The abducting parent is often ineligible for legal aid in England because they fail the “means” test [this is not only common to Polish nationals but to many other nationals and is because the legal aid means criteria is now exceptionally low.]

• We have experienced delay in the Polish courts implementing protective measures such as undertakings made in England during the currency of International Child Abduction Proceedings. I would be interested to know what is the legal process in Poland for implementing “protective measures” in such circumstances – how this is actioned and how are the legal costs funded

• All of the Polish cases we have coming before the courts, in my experience, include a plea by the abducting parent of there being available to them a better standard of living in England than in Poland with better national services such as health and education being available. Once again and drawing on my own experience this is. not usually accepted by the English courts. We also experience difficulties for the “left behind parent” who claims to find it difficult to provide protective measures which include finance such as financial support for the abducting parent and child on return due to “poor wages.”

• There has also been some recent criticism of the Polish courts for not being consistent in their approach to applying the Hague Convention:

❖ A Canadian divorce and custody case where the Canadian Court had given temporary custody to the Father. The Mother then abducted the children to Poland and the Father then issued Child Abduction proceedings in Poland. The Polish court took 18 months to decide the case. [This is very unusual given the time frame for the hearing and conclusion of such proceedings should be 6 weeks]. The Polish court found that there was a “grave risk” to the child if he were returned to Canada because separation of the child from his Mother would “disturb” his feeling of safety and stable life” would be “unfavourable to the child’s development” and “detrimental to the child’s welfare.” A Polish regional appeal court then upheld that judgment.

The Canadian court was of the view that the Polish court had muddled the line between a “grave risk” analysis” and a “best interests” analysis as well as giving priority to the mother’s interests over that of the father’s interests. The Canadian court also criticised a failure to engage in a Judge to Judge communication between the two countries.

The Canadian court ordered the return of the child to Canada and upheld its own decision within the divorce proceedings and awarded costs against the Mother.


CONCLUSION

How and whether BREXIT will impact on child abduction within Europe as a result of any changes the English Government may make to freedom of travel from Europe is yet to be determined.

That aside, for those of us working in the field of International Child Abduction we all have a common purpose and which I would personally summarise as follows:

1. Recognition of the impact on children that abduction has by removing them from their “left behind parent” and their country of habitual residence which usually would mean separation from extended family members and friends

2. The need for decisions of this nature to be heard swiftly thereby minimising the disrupting a child suffers whilst awaiting a final decision to be made by their country of origin

3. Recognising the value of the child’s voice and taking into consideration any “real” objections they have to a Return

4. The importance of countries acknowledging and respecting their different cultures and how this impacts on individual cases that come before the court

5. Working together to achieve the same aim which is for decisions involving cases involving where and with whom children should, where appropriate by their own country – where they have been habitually resident.

Finally I would like to end with a quote from the eminent Marie Curie born in Poland and twice Nobel prize winner “Have no fear of perfection; you'll never reach it. "Nothing in life is to be feared; it is only to be understood.” A quote for us lawyers perhaps to aspire to.

Thank you for allowing me to address you this evening and I hope that I personally as well as my country, England will continue to enjoy a mutually close and professional relationship you and your country for many years to come.


June Venters QC
10.10.16