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07 AUG 2008

F v M AND N (Abduction: Acquiescence: Settlement) [2008] EWHC 1525 (Fam)

(Family Division; Black J; 2 July 2008)
The Polish mother had wrongfully removed the child from Poland; at the time the child had been in the day to day care of the father, and the Polish court had already made interim orders concerning care and contact. After arrival in England the mother did not actively conceal the child's whereabouts, but did not inform the father of her whereabouts. There was a delay in issuing Hague Convention proceedings while the father actively pursued the child's return through the Polish courts. When the father's request for the summary return of the child was eventually heard the child had been living in England for almost 2 years. The mother raised the defence of acquiescence, and also of settlement.

The father had not acquiesced within Art 13 of the Hague Convention. It had been clear throughout to the mother that he wanted to care for the child, and required her to be returned to Poland. The father had engaged properly with the Polish courts whereas the mother had not made herself available for proceedings there (despite being represented in those proceedings from time to time). He had never been content for the child to remain in England, but had not been well served by those who advised him in respect of the ways in which her return could be secured. The child had become settled in England, notwithstanding the fact that she had been deprived of her relationship with the father. Although it was unusual for a 'settled' child to be returned to the country of habitual residence, a child could be returned even if she was settled in the new country. Every solution had serious disadvantages for the child. This case was unusual in that the Polish court had been seised of the case since before the abduction and had gone a very long way in its determination of what arrangements would be in her best interests. The Polish court was much better placed to determine many of these aspects of the case than was the English court. The child was to return to Poland to extent necessary to enable the Polish court to determine her future; suspension of the order was proposed to allow the mother to issue an application in Poland including, if possible, an application for permission to bring the child to England.

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