S, Re

S, Re

The children’s habitual residence remained in Poland at the time of alleged wrongful retention. Article 13(b) grave risk of harm and child objections defences are established, particularly due to physical and psychological harm risks and the likelihood of sibling separation. No adequate protective measures exist. Discretion exercised not to return the children under Hague Convention. Parallel BIIa application for enforcement of Polish order refused for same welfare reasons and to avoid undermining the Hague decision.

Parties
Applicant: KS; First Respondent: MS; Second, Third and Fourth Respondents: A, I, E (children)
Jurisdiction
England and Wales
Judgment Date
28 October 2020
Procedural Posture
Family / Final Hearing and Judgment
Outcome
Return of the children to Poland refused under both Hague Convention and BIIa applications.
Legal Topics
Hague Convention 1980, Council Regulation 2201/2003 EC (biia), Recognition and Enforcement of Foreign Orders, Habitual Residence, Child Objections, Grave Risk of Harm, Protective Measures, Sibling Separation
Family Law International Child Abduction Hague Convention 1980 Council Regulation 2201/2003 EC (biia) Recognition and Enforcement of Foreign Orders Habitual Residence Child Objections Grave Risk of Harm +2 more

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Parties

KS

Applicant

MS

First Respondent

A, I, E (children)

Second, Third and Fourth Respondents

Procedural Posture

Family / Final Hearing and Judgment

Legal Issues

  1. 1 Whether the children were wrongfully retained in England under the Hague Convention 1980
  2. 2 Whether the children should be returned to Poland under the Hague Convention or BIIa
  3. 3 Whether the Polish order should be recognised and enforced

Ratio Decidendi

The children’s habitual residence remained in Poland at the time of alleged wrongful retention. Article 13(b) grave risk of harm and child objections defences are established, particularly due to physical and psychological harm risks and the likelihood of sibling separation. No adequate protective measures exist. Discretion exercised not to return the children under Hague Convention. Parallel BIIa application for enforcement of Polish order refused for same welfare reasons and to avoid undermining the Hague decision.

Court Disposition

Return of the children to Poland refused under both Hague Convention and BIIa applications.

Orders

  • Permission granted to disclose this judgment, parents’ statements, and Cafcass reports to any Polish court or agency dealing with the children’s welfare.
  • Order to be drafted reflecting this decision and ancillary directions.