Final Hearing, Application for relocation to Poland, Re
[2024] EWFC 283 (B)
London Borough of Haringey v T (1996 Hague Convention Art 7)
28 June 2024
[2024] EWFC 151
Family Court
A mother took her child to Poland during a UK court case about the child's care. The UK court decided the child now lives in Poland and that the Polish courts are better suited to decide the child's future because of that. The UK court transferred the case to Poland.
Key Facts
- •Care proceedings concerning T (born February 2022) were initiated in England and Wales by the London Borough of Haringey.
- •T's mother removed T to Poland during the proceedings.
- •The court needed to determine whether it retained jurisdiction under the 1996 Hague Convention.
- •The key issues were T's habitual residence, the court's retention of jurisdiction under Article 7, and the potential transfer of jurisdiction to Poland under Article 8.
- •Various expert assessments were conducted on both parents, revealing cognitive impairments impacting their parenting capacity.
- •The local authority planned for adoption, but the mother's removal of T to Poland complicated the matter significantly.
Legal Principles
Jurisdiction in international child protection cases is primarily determined by the child's habitual residence (Article 5, 1996 Hague Convention).
1996 Hague Convention
In cases of wrongful removal, the court of the child's habitual residence before the removal retains jurisdiction until the child acquires a new habitual residence and certain conditions are met (Article 7, 1996 Hague Convention).
1996 Hague Convention
A court can have rights of custody for the purposes of the Hague Convention even without specific custody orders, if proceedings are actively seised of matters relating to the child's custody.
Re H (Abduction: Rights of Custody), X County Council v B, Re W (Minors)(Abduction: Father’s Rights)
The test for acquiescence by a court differs from that for a parent. For courts, an objective test based on actions (or lack thereof) is more appropriate.
NM v SM, Re H (Minors) (Abduction: Acquiescence)
Article 8 of the 1996 Hague Convention allows for the transfer of jurisdiction to another Contracting State if that State is better placed to assess the child's best interests.
1996 Hague Convention
Outcomes
T was deemed habitually resident in Poland.
T's seven-month residence, integration into a Polish family and social environment (nursery, family connections, etc.), outweighs his previous residence in England.
The English court retained jurisdiction under Article 7 of the 1996 Hague Convention.
The mother's removal was a breach of the court's rights of custody (vested by the ongoing care proceedings), and the court had not acquiesced to the removal.
The mother's application under Article 8 to transfer jurisdiction to Poland was granted.
Poland is now better placed to assess T's best interests due to T's habitual residence there, the Polish authorities' engagement with the case, and the mother's cooperation in Poland.