Buscador de jurisprudencia

The mother and father were both Polish nationals. They met in the United Kingdom in 2006 and married in 2007. Their first daughter was born in 2008, and their second daughter in 2013. At the time of the hearing the children were aged 16 and 11 respectively.

The family moved from the United Kingdom to Poland to live in July 2020. In May 2021 the parents separated, and agreed that the youngest daughter would live with the father, and the eldest daughter with the mother. With each parent having visiting contact.

In the years that followed many orders were made regarding the children and as part of the divorce negotiations. There were periods where the children were in foster care or had limited contact with one or both of their parents.

In July 2024 it was agreed that the father would take the children to the UK for a holiday. When the mother came to collect them the youngest daughter said she did not want to return to Poland. The father said he would drive them both back later in August but this did not happen.

In September the mother filed an application under the 1980 Hague Abduction Convention for the return of the child. 

The father argued that the child objected to returning to Poland and that to do so would place her at a grave risk of harm, within the meaning of Article 13(1)(b). 

Return ordered. No grave risk of harm was established and even if there had been one, protective measures were sufficient to ameliorate the risk. Though the child objected, discretion should be exercised so as to override this objection.

Grave Risk - Art. 13(1)(b)

The father argued that returning to Poland would put the child at grave risk of harm due to both physical and emotional abuse by the mother. The mother denied these allegations and said that the child had been influenced by her father.

The Judge held that, taking the risk of harm at its highest, and considering all of the evidence, the father failed to satisfy the burden of proving that there was a grave risk to the child. The allegations concerning physical and psychological harm were not of sufficient detail and substance as to constitute a grave risk of harm.

Even though the Judge found that no grave risk was established, he went on to consider protective measures. He held that, even if he was wrong about there not being a grave risk of harm or of an intolerable situation, the undertakings offered were enough to sufficiently ameliorate that risk.

Objections of the Child to a Return - Art. 13(2)

The father submitted that the child had consistently expressed objections to returning to Poland, inextricably linked with returning to the mother. The mother argued that the discretion should be exercised to override these objections. 

The Judge found that the child objected to returning to Poland and that she was of a degree of maturity such that it was appropriate to take account of her views. However, taking account of the context in which the child’s objections had arisen (being at the centre of longstanding family conflict, the influence of the father and older sister on her views), and balancing the factors in favour of return and against it, the Judge considered that discretion should be exercised so as to override these objections.