S (A Child): A difficult Hague Convention case

Photo by Krzysztof Kowalik on Unsplash

It's easy to think that Hague Convention cases are simple. There are not that many matters for the court to consider, and after all the court only has to look at the case summarily, rather than having to determine welfare issues.

However, the recent case S (A Child), which concerned a father's application for the summary return of his son to Poland, shows just how difficult a Hague case can be (made worse by the fact that the mother was unrepresented at first instance, as she was unable to obtain legal aid).

(Don't ask me why the child is referred to as 'S' in the case title, and 'M' in the judgment. For simplicity, I will just refer to him as 'the child'.)

The relevant facts were as follows:

1. The parents are both Polish nationals.

2. The child, now aged 7, was born in Poland, following a brief relationship between the parents. We are not told whether the parents' relationship ended before or after the child was born, but it appears that the child has always lived with the mother.

3. In July 2018, with the father's agreement, the mother travelled with the child to England for the purposes of a holiday. In August, the mother told the father that she wanted to remain in England for a few months to do further work on a business that she was intending to set up. The father's case was that he was not happy about that but that he acceded to an extension on the basis that the child would be returned to Poland by the end of the year. The child started school in England in October 2018.

4. In November 2018 the mother became engaged to a Polish man who had been living in England for fourteen years.

5. By agreement, the child visited Poland over Easter 2019. He was collected by his father on 7 April and was due to be returned to his mother on 17 or 18 April. However, the father did not return him, and instead applied to the Polish court on 17 April for the child to live with him.

6. On 1 May 2019, the mother regained care of the child during a period of contact agreed between the father and the maternal grandmother, and she returned with him to England at the end of the month.

7. The father issued his Hague application on 29 October 2019, and in January 2020 the High Court ordered the child's return to Poland, the judge finding:

(i) There had been a repudiatory retention in November 2018, alternatively in May/June 2019.

(ii) The child was habitually resident in Poland in May 2019.

(iii) The father had not consented to the child's retention in England.

8. The mother appealed, to the Court of Appeal.

Giving the leading judgment Lord Justice Moylan held:

1. That the judge did not address the possibility of retention having occurred in August 2018 (had he found a retention in August 2018, then obviously the question of settlement would have arisen).

2. The judge did not address the issue of acquiescence, concentrating instead on the issue of consent.

3. The judgment did not contain a sufficient analysis of the relevant factors necessary to explain, or indeed support, the judge's conclusion as to the child's habitual residence.

Lords Justices Jackson and Newey give concurring judgments.

Accordingly, the appeal was allowed, and the father's application was remitted for rehearing. Lord Justice Moylan set out five questions that would be likely to require determination at the rehearing:

(1) At what date did the mother retain the child in England?

(2) At that date, where was the child habitually resident?

(3) If the child was habitually resident in Poland at that date, did the father subsequently acquiesce in the retention (this would seem to be more likely than whether the father consented in advance to the proposed retention)?

(4) If acquiescence (or consent) is established, should the child nevertheless be returned to Poland?

(5) If the retention took place more than one year before the issue of proceedings on 29 October 2019, is the child now settled in his new environment?

You can read the full judgment here.