A multinational dispute between the parents of a seven year-old boy has been sent back to the High Court for a rehearing.

In S (A Child), the youngster had been born in Poland following a brief relationship between his parents. The father saw his son, referred to as ‘M’ in the judgement, on alternate weekends and during school holidays and was given a say in important decisions concerning the boy’s life.

Two years ago the mother travelled to England for a holiday with M and her daughter from an earlier relationship. The father agreed to the trip, but the following month she told him she wanted to extend her stay to explore setting up a business. The father reluctantly agreed, on the condition M would be returned to Poland before the end of that year, but the situation continued to change. In the autumn the father travelled to England to visit M and not long afterwards the mother announced that she was engaged to a Polish man also resident in England.

The mother and M returned to Poland at Christmas and the boy spent time with his father, before returning to England with his mother. The father travelled to England for a further visit with M in February and at Easter the boy travelled to Poland for a further holiday with the father. However, instead of then returning M on the agreed date, the father made an application in the Polish courts for the boy to live with him.

In response the mother applied for M’s return under the Hague Convention on the Civil Aspects of International Child Abduction, an international treaty which provides a legal mechanism for quickly returning children who have been abducted by a parent or kept abroad by one. She claimed that England was now M’s “habitual residence”- a legal term for the country in which a person normally lives.

But in May last year, she withdrew her case after regaining care of M during a visit in Poland, after which she immediately returned to England. The father responded by making his own Hague Convention application, and this was transferred by Poland to the High Court in England where M was living. Prior to the hearing, the Children and Family Courts Advisory and Support Service, more commonly known as Cafcass, was asked to report on M’s views: was he settled in England or happy to go live in Poland with his father?

The report concluded that M was not opposed to returning to Poland but:

“M has a family life and school life in England, he has friends and has adapted to the change in his country of residence. It is my assessment that he has achieved a settled status in the physical sense of being establishedin his community, and in an emotional and physical sense, feeling secure and stable in his current life. The court will question how a child can be considered settled when residing in the country prevents them from a relationship with the absent parent. Whilst I recognise and accept that there is an element of his psychological settlement missing, given the absence of a regular and clear pattern of time with his father, I do not believe that this has prevented him from establishing a stable life in England.”

In court, the mother’s defence was that the father had agreed to her returning M to England. But the High Court Judge disagreed, ruling that M’s habitual residence had become Poland by the time she took him back to Britain – and the father had not agreed to the latter move.

The mother appealed. Amongst other claims she argued that the Judge:

“…did not explore M’s connections with England in a child-focused way and he gave excessive weight to matters that were irrelevant.”

In addition, her legal team insisted, it would be “intolerable” for M to be separated from his older half-sister in England.

At the Court of Appeal Lord Justice Moylan found in her favour. He explained:

“I do not agree that the judge engaged sufficiently with the factors required to determine the issue of habitual residence and, further, it is not clear that he considered where M was habitually resident at any date other than May 2019 [when the mother took M back to England from Poland]”.

In addition, continued His Lordship, the Judge had focused too narrowly on the mother’s intentions and not properly explained the reasons for his conclusion that:

“M’s degree of integration in England was not such that his habitual residence in Poland had changed to England.”

The most important factor to be considered when determining the habitual residence of a child is the stability of his or her circumstances rather than the time spent in a particular locale, Lord Justice Moylan declared. It was not necessary for either parent to plan to live in the country permanently.

The mother’s appeal was allowed and the case sent back to the lower courts to be heard again.

Read the judgement here.

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