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(Court of Appeal; Thorpe, Wilson and Elias LJJ; 19 March 2009)
When the Polish parents, who lived in Poland, were divorced, the Polish court made an order under which the child was to live with the mother, with gradually increasing contact to the father. A few weeks later the mother travelled to Wales with the child, and did not return. After a time the maternal grandparents also moved to Wales. The father was unable to discover the child's whereabouts for about 9 months, and Hague proceedings were not issued until almost 1 year after removal. The proceedings themselves were delayed for a significant time, as a result of the mother's claim that the father's Polish rights did not equate to rights of custody: a single joint expert was instructed, who reported that the father did not have rights of custody, but then the Polish court made a ruling that the father had been exercising rights of custody when the child was removed. Eventually the mother accepted that the removal had been in breach of the father's rights of custody. The case was then argued on the basis of the child's objections to a return. The judge noted that the 9-year-old child had now been living in jurisdiction for about 18 months, was mature, and clearly objected to a return; he considered this was an exceptional case and refused to order the summary return of the child.
Where, in a case governed by Brussels II Revised, the parent who had been left behind in the country of habitual residence failed to obtain a summary return order, and where the court in the requesting state had been seized prior to the abduction, it was better for the disappointed parent simply to engage the Art 11 process and attain an order which must be automatically enforced in the requested state. Particularly in jurisdictions in which the appellate process could extend for 12 or more months, the disappointed parent would be strategically wiser to pursue the special process provided by Art 11 rather than the appellate process in the requested state. The court also questioned the process adopted in the instant case for resolving the issue of whether the father had rights of custody. The risks attached to the instruction of single joint experts were illustrated in this case, because the selected expert had turned out to be highly fallible, giving an unreliable opinion that had subsisted until he was cross-examined. There were sometimes difficulties with using the Art 15 route to resolve such an issue, because a number of European States had either not incorporated Art 15 into their domestic law, or, alternatively, had no experience of its operation, and the consequences of requiring one of the parties to obtain an Art 15 declaration in such states was either no beneficial result or a huge delay. This was an opportunity to draw practitioners' attention to the possibility of making greater use of the European network of specialist family judges. Practitioners and the central authority would do well to consider approaching Thorpe LJ's office in any case that raised an issue as to the domestic law in the requested state; the office would be able to offer pragmatic advice about the best route to offer in a particular case. The court granted permission to appeal, but only on the basis that case raised reportable issues, and went on to dismiss the appeal; the judge had not been taking any position in relation to the child's longer term welfare, and had been acting within his discretion.
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