Private Law
August 2022

Introduction: The applications before the court concerned one child, a girl aged approximately 2½, referred to as 'M'. M’s mother is Polish but had lived in England for nearly all of her adult life; the father (aged 31) is American, and since March 2021 has lived in England. M lives with her mother and, since 7 March 2022, they have been living in Poland.

The father sought the following relief:

i) A declaration that M was habitually resident in England as at 7 March 2022 (the date she left England); alternatively, that M was habitually resident in England as at 6 April (the date of his primary application) and/or 7 April 2022 (the date of the first order);

ii) A declaration that at the time M was removed to Poland on 7 March 2022, the father (who does not have parental responsibility for M under English law) nonetheless had 'rights of custody' in respect of her, and that he was exercising those rights of custody;

iii) A declaration that the removal of M from the jurisdiction was in breach of those rights of custody and therefore wrongful;

iv) A declaration that this court has jurisdiction to make substantive orders in respect of M (including a child arrangements order, prohibited steps and specific issue orders, including an order that M is returned forthwith from Poland) under sections 1 – 3 of the Family Law Act 1986 and/or under Articles 5 and 7 of the Convention on Jurisdiction, Applicable Law, Recognition and Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996 ("the 1996 Hague Child Protection Convention");

v) A declaration that the removal of M from this jurisdiction to Poland was wrongful within the meaning of Article 3 of the 1980 Hague Convention; this relief is sought in order to assist the father's claim in Poland, see below (see section 8 of the Child Abduction and Custody Act 1985 and Article 15 of the 1980 Hague Convention);

vi) An order vesting parental responsibility of M with the father pursuant to section 4(1) of the Children Act 1989.

Background: The mother and father met in Spain in 2019. Their relationship was extremely short, and they separated before the mother knew she was pregnant. In 2020, M was born; she is their only child. DNA evidence confirms the father's paternity. During 2020, the father made several visits to the UK from America, where he then lived, to visit M. In 2021, the father relocated permanently from America to the UK, so that he could live closer to M. By February 2022, the father's contact with M had settled to an arrangement whereby he would be with her between 5pm and 7.30/8.00pm on Wednesdays and Thursdays and between 9.30/10am and 5pm on Sundays, at the mother's home. Through solicitors, the parties were negotiating a more formal shared care plan, inter alia providing for M to stay overnight at the father's home [para 7-9]. On 3 March 2022, the mother's solicitors set out further detailed counterproposals for the build-up of the father's time with M. The proposals expressly contemplated: i) That the father would play a "significant" role in M's life; ii) Contact routinely taking place at the father's partner's home in London; iii) Contact taking place on sequential days of the week. Cobb J observed that all of the mother's proposals set out in this correspondence would be utterly inconsistent with M living in Poland and the father living in England [para 13].

On or about 3 March there was an argument between the parties about the future progress of relationship between the father and M. On 7 March 2022, the mother took M to Poland. There was no evidence that the mother gave notice either to her employer, or the child's nursery, and/or her landlord of her intention to leave for good [para 15 &16]. It was accepted that the mother's removal of M to Poland was undertaken without notice to the father, and without seeking his consent. On 4 April 2022 the mother sent the father a WhatsApp message in these terms: "Just to update you after long consideration I have decided to remain in Poland. M is much happier surrounded the family and so am" (sic.) [para 20]. On receipt of the WhatsApp message, the father applied in the English Family Court for child arrangements, specific issue and prohibited steps orders [para 22]. On 13 May 2022, the father issued proceedings under the Hague Convention 1980 in Poland.

The father's case: The father's case is that at 7 March 2022, M was habitually resident in England and Wales; she was significantly 'rooted' here. By the time of M's removal from this country he had acquired 'inchoate' rights of custody. The father invited the court to conclude that the removal was in breach of those rights of custody, which he was exercising at the time; and that the removal was therefore 'wrongful' [para 28].

The mother's case: The mother wished the father to play a full and large part in M's life; she wished this to take place in Poland. She wished to remain resident in Poland for the foreseeable future. It was conceded, on behalf of the mother, that M was habitually resident in England as at 7 March 2022 [para 29]. However, it was the mother’s case that the English Court does not have jurisdiction to make any orders in relation to M as she is now, and was as at 6/7 April, habitually resident in Poland. She argued that the Polish Court should determine welfare issues concerning M [para 30].

The legal principles: Jurisdiction: This court would be prohibited from making a section 8 Children Act 1989 Order and/or an order in the exercise of its inherent jurisdiction in relation to care or contact in relation to M unless the court were to be satisfied that it has jurisdiction either [para 33]:

i) under the Convention on Jurisdiction, Applicable Law, Recognition and Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996 ("the 1996 Hague Child Protection Convention"); or

ii) if the 1996 Hague Child Protection Convention does not apply, at the relevant date (namely when the father's application was made), the child is habitually resident in England and Wales (section 2, 3 and 7 of the Family Law Act 1986).

Habitual residence: is a question of fact: the court needs to consider whether the residence of a particular person in a particular place has acquired the necessary degree of stability (permanent is the word used in the English versions of the two CJEU judgments) to become habitual. Counsel agree that the determination of a child's habitual residence depends on an assessment of the degree of integration of the child in a social and family environment in the country concerned. This depends upon numerous factors [para 38]. These principles follow a line of authority starting with Proceedings brought by A (Case C-523/07) [2010] Fam 42, and affirmed by in Mercredi v Chaffe (Case C-497/10PPU) [2012] Fam 22, para 47 and then the decision of the Supreme Court in A v A (Children: Habitual Residence) [2013] UKSC 60, [2013] 3 WLR 761, notably at §54 [at para 39].

In this case, there is rightly no dispute that the mother and M were habitually resident in England as at 7 March 2022. However, a question arises as to whether M's habitual residence had changed during March 2022 (as the mother contends). It would be particularly relevant for the court to consider this issue if it were to find that Article 7 of the 1996 Hague Child Protection Convention did not apply; in such an event, the basis of the father's claim for jurisdiction would be founded on habitual residence at the later time, namely the time of his application/first order [para 41]. It is in those circumstances that it would be necessary to consider [para 42]:

i) As a matter of fact, the degree of integration which the mother and/or M had achieved in Poland during March 2022 (up to 6 April 2022);

ii) As a matter of law, whether, if the mother's habitual residence had indeed changed during March 2022 as she contends (she having resolved to remain in Poland as she indicated to the father in the WhatsApp message), M's habitual residence necessarily changed with her mother; or could she nonetheless retain her habitual residence in England.

On this latter point, Cobb J reminded himself that the determination of habitual residence must be [at para 41]: "… a child-centred approach. It is the child's habitual residence which is in question. It is the child's integration which is under consideration. Each child is an individual with his own experiences and his own perceptions" (Baroness Hale: Re LC [2014] UKSC 1 at §62). The court was referred to Re B (A child) (abduction: habitual residence) [2020] EWCA Civ 1187, in which the Court of Appeal (Moylan LJ delivering the lead judgment) held (at §127) that – even with a child aged 2 years – "all the relevant circumstances" of the child need to be considered (emphasis in the original), and not just the situation of the parent with care: "… it was necessary to look at the family's situation including that of the father… the circumstances of both parents and not just one parent, even the primary carer, are relevant" (ibid.).

Rights of Custody: The rights of the father are a matter for the law of the state of the child's habitual residence (see PD12F FPR 2010, §2.16 et seq.). Given that the father did not have formal 'rights of custody', Cobb J had taken as his starting point, as Macdonald J did in T v T (Inchoate Rights) [2021] EWHC 3231 (Fam), the decision of the Court of Appeal in Re B (A Minor) (Abduction) [1994] 2 FLR 249 [para 46]. In that case, it was held (Waite LJ giving the lead judgment) that the rights within Article 3 of the 1980 Hague Convention may extend to 'inchoate' rights of those who are carrying out duties and enjoying privileges of a custodial or parental character which, though not yet formally recognised or granted by law, a court would nevertheless be likely to uphold in the interests of the child, at least to the point of refusing to allow it to be disturbed, abruptly or without due opportunity of a consideration of the claims of the child's welfare, merely at the dictate of a sudden reassertion by another of their official rights. Waite LJ had observed as follows: "The objective [of the 1980 Hague Convention] is to spare children already suffering the effects of breakdown in their parents' relationship the further disruption which is suffered when they are taken arbitrarily by one parent from their settled environment and moved to another country for the sake of finding there a supposedly more sympathetic forum or a more congenial base. The expression "rights of custody" when used in the Convention therefore needs to be construed in the sense that will best accord with that objective. In most cases, that will involve giving the term the widest sense possible." (pp.260-261)

Conclusion

Habitual residence: It was conceded that as at 7 March 2022, M was habitually resident in England and Wales. The court conclude that M's removal from England was "wrongful" within the meaning of Article 7 of the 1996 Child Protection Convention. The court reached the further view, on the evidence, that M's habitual residence had not changed over the period between 7 March 2022 and 6/7 April 2022. It follows that as at date of the father's application, quite apart from what Cobb J had said earlier about M's habitual residence as at 7 March, this Court had jurisdiction under Article 5 of the 1996 Child Protection Convention [para 56].

Rights of Custody: Cobb J reached the conclusion that the father had acquired inchoate 'rights of custody' in respect of M at the point at which M was removed from this jurisdiction. These rights of custody were established, as the father had argued, by a combination of factors. Those identified at (i) to (iv) in Cobb J’s judgment, established important context for the establishment of 'rights of custody'; those at (v) to (vii), taken together, established the requisite status [see para 57].

Cobb J found that the removal was in breach of those rights of custody [para 60]. It follows that the removal was 'wrongful'. The father had demonstrated to Cobb J’s satisfaction that he is entitled to his declaration under Article 5 and 7 of the 1996 Hague Child Protection Convention and under Article 15 of the 1980 Hague Convention. Pursuant to article 5 & 7 of the 1996 Hague Child Protection Convention, Cobb J declared that:

a) M was wrongfully removed from and/or wrongfully retained from England and Wales the state in which the child was habitually resident immediately before her removal or retention,

b) the applicant father having rights of custody has not acquiesced in the removal or retention,

c) M has not resided in the Republic of Poland for a period of at least one year following the father having knowledge of the whereabouts of the child and in any event has issued a request for a return pursuant to the Children Act 1989 in this jurisdiction and pursuant to article 12 of the 1980 Hague Convention in the Republic of Poland, both applications are still pending.

d) In the circumstances the courts of England and Wales retain jurisdiction in relation to parental responsibility.

Cobb J made a declaration under Article 15 of the 1980 Hague Convention that the removal of M from this jurisdiction to Poland was wrongful within the meaning of Article 3 of the 1980 Hague Convention.

Cobb J adjourned the father's application for an order for the return of M to this jurisdiction and proposed to review this again in approximately 8 weeks’ time following the determination of the father's 1980 Hague Convention application in Poland (see §47 & 48 of S (Abduction - Hague Convention Or BIIa) [2018] EWCA Civ 1226 ).

Parental responsibility: The father’s application for parental responsibility for M was framed under section 4(1)(c) of the Children Act 1989 [para 62]. The court was referred to the decisions of Re H (Parental Responsibility) [1998] 1 FLR 855 and Re G (Shared Residence Order: Biological Mother Of Donor Egg) [2014] EWCA Civ 336 [2014] 2 FLR 897, and to the judgment of Balcombe LJ in Re H (minors) (Local authority; Parental Rights) (Number 3) [1991] Fam 151, (identified as the 'starting point' for any consideration of this issue) in which the key ingredients in the determination of the relevant application were specifically referenced as:-

i) the degree of commitment which the father has shown towards the child;

ii) the degree of attachment which exists between the father and the child;

iii) the reasons of the father for applying for the order.

Cobb J noted that the issue is one on which he must take into account all the relevant circumstances relevant to M, bearing in mind that section 1 of the Children Act 1989 applies and the welfare of M is therefore paramount. Cobb J made the relevant order bestowing parental responsibility on the father.