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19 March 2009
Court of Appeal (Civil Division)
Thorpe, Wilson and Elias LJJ
For context, Art 15 Hague Convention 1980 states as follows:
‘The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Art 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.'
The family of Polish nationals lived in Poland. When the parents were divorced, the Polish court ordered that the child, who was about 7 years old, was to live with the mother, with the father being granted contact. The mother removed the child 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 were further delayed by confusion surrounding the question of whether the father was entitled to custody rights in Poland. At first instance, the judge noted that the child had been living in Wales for about 18 months, was mature, and objected to return. He considered this was an exceptional case and exercised his discretion to refuse to order summary return of the child. He made clear that he was not ruling on the basis of the child's long-term welfare, which remained to be considered, but merely on whether to order a summary return.
The father appealed, focusing on the fact that Polish proceedings were already on foot to decide all issues relating to the child's welfare, and on the fact that the child was a Polish child, whose first language remained Polish, and who had been removed unlawfully from his home in Poland.
The Court of Appeal dismissed the appeal, essentially stating that the Judge had given a careful judgment which was well within the boundaries of his discretion. It went on to state that, in an abduction case governed by Brussels II Revised, in which the court in the Requesting State had been seised prior to the abduction, a parent who failed to obtain a summary return order would be strategically wiser to pursue the special process provided by Art 11 to obtain an order that would automatically be enforced in the Requested State, rather than to pursue the appellate process in the Requested State, particularly in jurisdictions in which the appellate process could extend for 12 or more months.
A concern of the Court of Appeal were the delays in the litigation process, brought on by the confusion over the father's rights under Polish law. Article 15 Hague Convention was floated as a possible mechanism to facilitate greater speed. The case's relevance for Judicial Collaboration lies in the obiter comments of Thorpe LJ, which bear this in mind at para :
Is Art 15 of the 1980 Convention therefore the preferred route? Well, there are difficulties with Art 15 also, because a number of European States have either not incorporated Art 15 into their domestic law or, alternatively, have no experience of its operation. In those states the consequence of requiring one of the parties to obtain an Art 15 approach declaration is either no beneficial result or huge delay. So I wonder whether this case does not present an opportunity to draw practitioners' attention - and obviously the attention of the case workers in the central authority - to the possibility of making greater use of the European network of specialist family judges attached to the statutory European judicial network? Taking the present case, the network judge for Poland has been an outstanding collaborator whenever my office has appealed to him for information or assistance and, accordingly, practitioners and the central authority would be well to consider approaching my office in any case which raises an issue as to the domestic law in the requested state. With the experience that we have of past dealings with member states, it would be possible for my office to offer pragmatic advice as to which would be the best route to follow in a particular case: whether to go for a single joint expert; whether to go for an Art 15 declaration; or whether to go for an opinion from the liaison judge as to the law of his own country, an opinion that would not be binding but which would perhaps help the parties and the court of trial to see the weight, or want of weight, in the challenge to the plaintiff's ability to cross the Art 3 threshold. Even the formal determination by a court in the requesting state of the status of the father's rights according to the domestic law is not determinative, because in the end a question has to be decided according to the autonomous law of the Convention and not the domestic law of the requesting state. But in practice, in the majority of cases, a definitive ruling from the court of the requesting state under Art 15 will be determinative of the issue. Cases in which the requesting state will conclude that the determination of the requesting state is not consonant with the autonomous law of the Convention will be rare indeed. So, having ventured to express those views on practice, which are not necessary for the determination of the application for permission, I would grant a permission which would perhaps not otherwise be justified and dismiss the resulting appeal.
These three cases are considered together, for the purposes of this commentary, in order to emphasise the wide spectrum of assistance that Judicial Collaboration or direct judicial communication can offer.
With Re ML and AL, English judgments and orders were communicated to Austria. With F (A Child), the Court of Appeal alluded, within strict limits, to the Office being able to offer opinions as to the most efficient route to obtain a decision or determination that a removal was wrongful pursuant to Art 15. Re M and J arguably shows direct judicial communication facilitating, with the consent of the parties throughout, something close to what arguably might amount to trans-national judicial case management.
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