Family Law Hub

M (BIIa Article 19: Court First Seised) [2018] EWCA Civ 1637

Mother's appeal against an order that she return the children to the UK from Poland after the English court ruled that they, and not the Polish court, had jurisdiction. The appeal was allowed, the court saying that the Polish court became and had remained seised of jurisdiction in relation to the children.

  • Case No: B4/2018/0387

    Neutral Citation Number: [2018] EWCA Civ 1637

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM THE FAMILY COURT

    MR JUSTICE MOSTYN

    SD16P00646

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: 12 July 2018

    Before :

    LORD JUSTICE HAMBLEN

    LORD JUSTICE MOYLAN

    and

    LORD JUSTICE PETER JACKSON

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    Re: M (BIIa Article 19: Court First Seised)

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    Kristina Hopper (instructed by Goodlaw Solicitors) for the Appellant mother

    Timothy Scott QC (by Direct Access) for the Respondent father

    Hearing date: 21 June 2018

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    Judgment

    Lord Justice Peter Jackson:

    1. The ultimate issue on this appeal is whether the Family Court was right to assert its jurisdiction over two children, now aged 6 and 4, and, having done so, to order their mother to return them to this country from Poland. The appeal is formally brought against a decision refusing to set aside such an order, which in turn requires consideration of the validity of the order itself.

    The background

    2. These children’s parents are professional people, the mother being Polish and the father Hungarian. They met at a conference in 2010 and in 2012 the elder child was born. Later that year they married and the mother and child moved to England to join the father, who was working here. The mother herself also worked. In 2013, the younger child was born. Until May 2016, the family was based in England, although the mother returned to Poland with the children for significant periods due to difficulties in the marriage.

    3. The mother then took matters into her own hands. On 19 May 2016, she travelled to Poland with the children for a 10-day holiday, but she did not return on the due date and instead told the father that she would not be returning and wanted a divorce.

    4. The mother returned to England without the children to attend mediation with the father. On 12 June 2016, she and the father travelled to Poland. On 20 June, the father took the children to Hungary without the mother’s knowledge. On 29 June, he returned to England with them. The mother then came back to England on 6 July, and on 30 July she again unilaterally took the children to Poland. The children have remained there since then, and they have only seen their father sporadically in the two years that have since passed.

    The litigation

    5. These events led to protracted litigation in both jurisdictions, with the mother seeking to establish jurisdiction in Poland and the father jurisdiction in England.

    6. On 2 June 2016, the mother, acting in person, issued an application for custody in the Lodz District Court. On 14 July 2016, that application, which was never served on the father, was dismissed on paper by Judge Rzeznik on the basis that the children were habitually resident in England and that the Polish court therefore lacked jurisdiction. By then the children were, of course, back in England with the father.

    7. On 30 June 2016, the mother submitted a child abduction application to the Polish central authority under the Hague Convention 1980. At that time she believed that the children were in Hungary. The application was withdrawn on 1 August, the mother having retrieved the children in the meantime.

    8. The first application in this jurisdiction was made by the father on 4 July 2016. He applied under the Children Act 1989 to the Family Court at Brighton for a child arrangements order and a prohibited steps order to prevent the children’s removal from England. An order in these terms was made that day at a hearing of which the mother had no notice. (It is not clear why she was not given at least short notice, as should have happened, but nothing now turns on that.) The order was expressed to last until a further hearing on 18 July 2016. The application and order were immediately notified to the mother and were later personally served on her.

    9. When the matter came back before the court on 18 July, the parents were both represented. The mother raised the issue of jurisdiction but did not inform the court that her application to the court at Lodz had been dismissed on 14 July (she says she was unaware until later). The judge therefore stayed the English proceedings pending confirmation from the Polish court that there were applications predating the application to the English court and, if such confirmation were received, invited the Polish court to determine the issues of jurisdiction and habitual residence. In the meantime, the court put in place holding arrangements for the children’s care and ordered that neither parent was to remove them from England and Wales, except that they were permitted to travel with one or both parents to Poland for any court hearing. It was in purported reliance on this proviso that the mother removed the children to Poland on 30 July without the father’s knowledge.

    10. On 13 July 2016, the mother had issued an application for divorce in Poland. On 14 September 2017, the Polish court rejected the father’s application for it to be dismissed.

    11. On 1 August 2016, the mother, by now legally represented, requested the Court at Lodz to reverse its decision of 14 July and to assume jurisdiction. Applying under the same case number as before, she submitted further evidence, including information about the stance of the English court on 18 July. It is clear from the resulting order that this request was made under Article 395(2) of the Polish Civil Code. Again, no notice was given to the father. On 5 August, the matter came before Judge Rzeznik, who set aside her earlier order, accepted jurisdiction, and established the children’s residence with their mother until a final decision could be made. At that point the children were of course back in Poland. On 16 August, the father lodged an appeal against this decision.

    12. Coincidentally, on 5 August 2016 the matter had been before the court at Brighton on the application of the father for enforcement of the prohibited steps order. The court considered that the mother had been entitled to take the children to Poland for the purposes of attending court there and that accordingly she would not be in breach of the order provided that she returned the children to England by 10 August at the latest. It lifted the stay on the English proceedings and directed that the matter return on 12 August.

    13. Also on 5 August, but after the conclusion of the English hearing that day, the Lodz District Court responded to the request for information made to it by the English court. In an email to the court at Brighton, it advised that the mother’s application regarding the children had been submitted to the court at Lodz on 2 June. Although not explicitly stated, one inference is that those proceedings were continuing since that date; in a later ruling on 7 December 2016 (see below), Judge Rzeznik appeared to confirm the existence of a pending Polish jurisdiction from 2 June onwards.

    14. On 12 August 2016, the matter came before Keehan J. The father’s appeal in Poland against the order of 5 August was due to be heard on 1 September, and the English proceedings were therefore adjourned to 16 September, when they were adjourned generally with liberty to restore, the father wishing to prioritise Hague Convention 1980 proceedings in Poland for the return of the children.

    15. The father’s child abduction application was issued on 4 October 2016. It was heard by Judge Rzeznik on 5 December 2016 and dismissed on 7 December on the grounds that the children were not habitually resident in this jurisdiction when they were removed to Poland by the mother, and on the basis of grave risk of harm (Article 13b). On 28 March 2017, the father appealed from that decision. This appeal, together with his appeal from the 5 August 2016 decision in relation to jurisdiction. were dismissed by three judges of the District Court in Lodz on 13 June 2017, who found that in respect of jurisdiction the Polish proceedings “started on 2 June 2016”, that the judge’s decision on habitual residence had been correct and that the December decision in regard to the child abduction application had also been correct.

    16. On 20 October 2016, the father issued an English divorce petition; on 6 March 2017 this was stayed until the conclusion of the mother’s Polish divorce proceedings.

    17. There have been other applications, including by the father in Poland for contact. On 9 May 2017, an order was made for him to see the children, but only in Poland and in the presence of the mother. Both parties have appealed this order: the father on the ground of the restrictions imposed; the mother on the ground that no contact should have been awarded. On 14 September 2017, the Regional Court at Lodz directed the father to lodge the children’s Hungarian passports before contact took place; on 15 May 2018, the Court of Appeal dismissed the father’s appeal from this order. There have also been proceedings in Poland by which the father was ordered to pay child maintenance, and enforcement proceedings in this jurisdiction as a result of his failure to do so. The father has also applied to the European Court of Human Rights, alleging violations by the Polish courts.

    18. We now come to the sequence of events giving rise to this appeal. In March 2017, the father applied to lift the stay on his Children Act proceedings and sought declarations establishing an English jurisdiction over the children and an order for their return. Detailed directions were given by Hayden J on 12 June 2017. The mother did not attend that hearing, but had written several times to the court. She asserted that the Polish court had exclusive jurisdiction and asked for the English proceedings to be suspended. If this did not happen, she requested that her evidence be heard by video link “by way of judicial assistance by the Polish court”. Hayden J set the father’s application down for a 2-day hearing on 31 October 2017. Both parents were required to attend that hearing but there was provision for the mother to give evidence by video link if she notified the court and the father’s solicitors of her wish to do so by 26 June. The mother was to be responsible for setting up and testing the link. She was also to notify the court as soon as possible if she required an interpreter. The order contained provisions about the way in which expert evidence on Polish law was to be gathered, and settled the questions that were to be asked.

    19. On 26 June 2017, the mother wrote to the English court. She again requested that the English proceedings should not go ahead in light of the Polish orders, but if they continued she asked for further time to prepare, for an interpreter, for a video link and for legal aid. She also notified the court, in accordance with the previous directions, that she did not agree the identity of the legal expert proposed by the father. She suggested that that the Polish Ministry of Justice should be asked to advise on Polish law.

    20. There is no indication that the mother’s correspondence with the court received judicial attention, but from mid-October there was ineffectual correspondence between the father, the father’s solicitor and the mother about the mother’s intentions for attending the forthcoming hearing.

    21. So it was that the matter came before Mostyn J on 31 October and 1 November 2017. I will call this “the main hearing”. The father appeared in person. The mother did not attend. On 14 November the judge handed down a judgment in which he found that the English court had exclusive jurisdiction, and he ordered the mother to bring the children to this country by 15 December for them to live in the family home with alternating week-on week-off care from each parent: see GM v KZ [2017] EWFC 73.

    22. The mother immediately responded on 15 November, drawing attention to the requests made in her message to the court of 26 June. She said that she asked the court manager at Lodz to organise the oral evidence but had been told that it would be organised by the court itself, and that she had heard nothing more.

    23. Mostyn J treated the mother’s response as an application to set aside his judgment under rule 27.5 of the Family Procedure Rules 2010. On 15 November, he made an order setting that application down for hearing on 22 November and directed that the mother could attend by video-link or telephone. She was to signify which she preferred by 20 November and the necessary arrangements would then be made.

    24. On 21 November, the Consular Section of the Embassy of the Republic of Poland in London wrote to the court asserting that a request to take direct evidence from the mother had to be made via the Polish Central Authority pursuant to Article 17 of Council Regulation (EC) No. 1206/2001 ("the Evidence Regulation"). The mother had agreed to attend by video link but the English court had not approached the Polish court to make arrangements for her to do so. The mother wrote to the court in similar terms.

    25. On 22 November, the matter again came before Mostyn J. The father attended; the mother did not. The judge adjourned the matter until 29 November. He ruled that FPR 27.3 required the mother’s personal attendance, but that the order of 15 November had allowed her to attend by telephone or video link as a concession, and he noted that she had been given all the necessary contact numbers. As no oral evidence would be taken on a set-aside application, the Evidence Regulation was not relevant. In the light of what the judge described as “the continued meritless obstacles generated by the mother to remote participation in any form”, he ordered her to attend in person on 29 November.

    26. On 29 November, the mother did not attend but was represented by counsel. Directions were given for statements to be filed and the matter was adjourned to 22 January 2018.

    27. On 4 December the mother, by now represented, formally applied to set aside the 14 November order and on 22 December she filed a statement. In it she said that her Polish lawyers had advised her that the video link should be arranged via the Polish court, which had in turn informed her that this should be done under the Evidence Regulation following a request from the English court. She had also contacted a number of government agencies, who had confirmed this.

    28. The matter came back before Mostyn J on 22 January 2018, on which occasion both parents were represented by counsel. In his second judgment, given on 30 January, the judge dismissed the mother’s application to set aside his November decision, refixed the date for the children to be returned to England as being 27 February, and remitted the matter to the court at Brighton to determine the future arrangements of the children: see GM v KZ (No 2) [2018] EWFC 6.

    29. On 20 February, the mother sought permission to appeal. This was granted by Moylan LJ on 16 March, a stay having been granted in the meantime.

    30. From this review, it can be seen that the welter of litigation arising from the unilateral actions of these parents has brought no resolution for their children, and that there are at present irreconcilable decisions about them in the two legal jurisdictions.

    The law

    31. I will outline the law regarding (1) applications to set aside, (2) jurisdiction in matters of parental responsibility, and (3) the taking of evidence from EU Member States.

    32. Rule 27.5 of the Family Procedure Rules 2010 governs the approach to setting aside a judgment or order following a party’s failure to attend:

    “27.5

    (1) Where a party does not attend a hearing or directions appointment and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.

    (2) An application under paragraph (1) must be supported by evidence.

    (3) Where an application is made under paragraph (1), the court may grant the application only if the applicant –

    (a) acted promptly on finding out that the court had exercised its power to enter judgment or make an order against the applicant;

    (b) had a good reason for not attending the hearing or directions appointment; and

    (c) has a reasonable prospect of success at the hearing or directions appointment.”

    The hurdles presented by sub-rule (3) are cumulative. If the application is to succeed the applicant must clear them all.

    33. This court has given guidance on the application of the equivalent provision in the Civil Procedure Rules, CPR 39.3.

    34. In Bank of Scotland Plc v Pereira [2011] 1 WLR 2391 Lord Neuberger MR said:

    “26. The strictness of this trio of hurdles is plain, but the rigour of the rule is modified by three factors. First, what constitutes promptness and what constitutes a good reason for not attending is, in each case, very fact-sensitive, and the court should, at least in many cases, not be very rigorous when considering the applicant's conduct; similarly, the court should not pre-judge the applicant's case, particularly where there is an issue of fact, when considering the third hurdle. Secondly, like all other rules, CPR 39.3 is subject to the overriding objective, and must be applied in that light. Thirdly, the fact that an application under CPR 39.3 to set aside an order fails does not prevent the applicant seeking permission to appeal the order. It is not very convenient, but an applicant may be well advised to issue both a CPR 39.3 application and an application for permission to appeal at the same time, or to get agreement from the other party for an extension of time for the application for permission to appeal.”

    35. In Mohun-Smith v TBO Investments [2016] EWCA Civ 403, [2016] 1 WLR 2919, Lord Dyson MR said:

    “24. I recognise that an appellate court should be slow to interfere with a decision of a lower court on the question of whether a litigant had a good reason for not attending a trial. Such a decision is a fact-sensitive evaluation made in the light of all the circumstances. It is the kind of decision that an appellate court will only strike down for reasons analogous to those which justify interfering with an exercise of discretion. But in making that assessment, the judge must have regard to the guidance given in Pereira and Estate Acquisition and the need, when applying rule 39.3(5)(b), to seek to give effect to the overriding objective of dealing with cases "justly" and to comply with article 6 of the European Convention on Human Rights ("the Convention"). This is particularly important where, as in the present case, the party has a reasonable prospect of success at the trial. In such a case, the court should usually not adopt a very rigorous approach to the question whether the litigant has shown a good reason for not attending.”

    36. It should be noted that FPR 27.3 requires that unless the court directs otherwise, a party shall attend a hearing or directions appointment of which that party has been given notice. This provision is specific to family cases, but it is not infrequently relaxed, particularly in international cases where a party is represented or able to attend by telephone or video link: it will all depend upon the circumstances.

    37. At all events, the ‘reasonable prospect of success’ hurdle requires consideration of the validity of the underlying decision. It is therefore necessary to look at the provisions relating to jurisdiction.

    38. Questions of jurisdiction, recognition and enforcement in matters of parental responsibility are governed by the Council Regulation (EC) No 2201/2003 (‘Brussels IIa’). The purpose of the Regulation is to promote judicial cooperation (Recital 1), with recognition and enforcement of judgments to be based on the principle of mutual trust (Recital 21).

    39. Article 8(1) supplies the foundation for jurisdiction in cases of parental responsibility:

    “Article 8

    General jurisdiction

    1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.

    40. Articles 19(2) and (3) relate to actions proceeding in more than one state:

    “Article 19

    Lis pendens and dependent actions

    2. Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

    3. Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court.

    …”

    41. Article 16(a) defines seisin:

    “Article 16

    Seising of a Court

    1. A court shall be deemed to be seised:

    (a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent;

    …”

    The requirement of the proviso is not an obligation to serve but rather an obligation to take the steps one is required to take to have service effected, as prescribed under domestic law. It is therefore necessary to know what domestic law requires before it can be said that there has been a failure.

    42. This court has determined that, following a refusal of jurisdiction, seisin continues pending an appeal: Moore v Moore [2007] EWCA 361 (see below).

    43. Articles 24 and 26 preclude the review of matters of jurisdiction or of substance:

    Article 24

    Prohibition of review of jurisdiction of the court of origin

    The jurisdiction of the court of the Member State of origin may not be reviewed.

    Article 26

    Non-review as to substance

    Under no circumstances may a judgment be reviewed as to its substance.”

    44. In P v Q (Case C-455/15 PPU), [2016] 1 FLR 337, a recognition case with otherwise similar facts to the present case, the European Court of Justice said this:

    “46. Moreover, it must be recalled that the court of the State in which recognition is sought cannot, without calling into question the purpose of Regulation No 2201/2003, refuse to recognise a judgment from another Member State solely on the ground that it considers that national or EU law was misapplied in that judgment.”

    The reference to the purpose of the Regulation is a reference to the principle of mutual trust (see P v Q at [35]).

    45. Article 55 provides a mechanism whereby information about a child’s situation can be obtained from another state:

    Article 55

    Cooperation on cases specific to parental responsibility

    The central authorities shall, upon request from a central authority of another Member State or from a holder of parental responsibility, cooperate on specific cases to achieve the purposes of this Regulation. To this end, they shall, acting directly or through public authorities or other bodies, take all appropriate steps in accordance with the law of that Member State in matters of personal data protection to:

    (a) collect and exchange information:

    (i) on the situation of the child;

    …”

    46. Finally, the taking of evidence from another Member State is governed by the Evidence Regulation. Article 17 establishes a machinery whereby the court requesting the evidence submits a request in prescribed form to the central authority of the other state. Arrangements can then be made for the witness to attend at the domestic court, either to give evidence to a judge there, or to give evidence by video link to the requesting court. These provisions are incorporated into our rules of court by FPR Practice Direction 24A, in particular at paragraph 9.

    47. In this court’s experience, the Evidence Regulation is little used in international family proceedings. By contrast, the taking of evidence or submissions by video link or telephone, as contemplated by the orders made in this case, is very common and is achieved by cooperation between the court and the party wishing to call the evidence. The Regulation requires a more formal process, which is no doubt the reason why it is not used more often. Nonetheless, judges faced with problematic issues about taking evidence remotely from a Member State should be aware that other States and their nationals may expect that the Regulation will be used and take account of this when determining the arrangements that should apply. Depending on the circumstances, it may not be necessary or appropriate to invoke the Regulation, but if it is simply side-stepped, there may be problems of the kind that arose in this case.

    48. In passing, I note that the judge inadvertently referred to this regulation as “the Service Regulation”. We are not concerned in this case with Council Regulation (EC) No. 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, which allows service of judicial documents without recourse to consular or diplomatic channels.

    The judge’s decisions

    49. The operative parts of the judge’s reasoning in his November decision were these:

    * The children were habitually resident in England and Wales on 2 June and 4 July 2016. [paras. 10 & 41(ii)]

    * The mother’s application of 2 (sc.1) August 2016 was not an appeal properly so-called, but a new application. It should have been stayed by the Polish court pursuant to Art.19(2). [30]

    * Additionally, the mother’s applications of 2 June and 1 August cannot establish priority over the English proceedings because, contrary to Art. 16 of BIIa, they were never served. [31,33]

    * Having reviewed the evidence before both courts, the decisions of the Polish court in July and December 2016 in relation to habitual residence were incorrect. [36-37]

    * The decision of the Polish appeal court in June 2017 did not explain how it could have accepted that the children were habitually resident in Poland in June 2016. [39]

    * In consequence, while the Polish court was first seised with welfare proceedings on 2 June 2016, it lost that seisin when the proceedings were not served on the father and in any event on 14 July 2016 when the mother’s application was dismissed. It reacquired seisin on 1 August 2016 but that seisin was subservient to the seisin by then established in the English Court on 4 July 2016. Accordingly, the Family Court of England and Wales has exclusive jurisdiction to determine the welfare proceedings upon the basis of Article 8. [41(iii)]

    * Although the children had been in Poland for 15 months, the court should not transfer the case to Poland under Article 15. [42]

    * The children should be summarily returned to England, taking account of the mother’s breach of the order of 5 August 2016, the fact that the father would not feel that he would have a fair trial in Poland, and the principle that children should be in the place from which they have been wrongfully taken. [42]

    * The Polish court would be required to recognise and enforce this decision under Articles 21 and 28, and (in that the Article 13b defence had been made out) under Art 11.8.

    50. The operative parts of the judge’s reasoning in his January decision were these:

    * The mother had acted promptly in seeking to set aside the order. [13]

    * Conflicting expert evidence on Polish law provided by the parties (though not in accordance with the process directed by Hayden J) did not help to decide the essential character of the application made by the mother on 1 August 2016. [22]

    * The court’s original assessment of the character of the 1 August application was correct. [24]

    * Similarly, the court’s original assessment of the Article 16 service requirement was correct. [28]

    * Accordingly, the mother had no reasonable prospect in success in overturning the November judgment. [29]

    * Additionally, the mother had no good reason for failing to attend the November hearing. [30]

    * Her application would therefore be dismissed. [31]

    * Remarks about the approach of the Polish court in the original judgment were observational, did not amount to a direct review of the legitimacy of those steps, and were not a necessary component of the decision. [32]

    * The mother’s argument that the court lacked the necessary evidence to make a summary return order was not accepted; the mother could apply for protective measures before the date for return. [33]

    The grounds of appeal

    51. On behalf of the mother, Ms Hopper submits that:

    1. The judge was wrong to hold that the Polish Court was not seised of the matter as at 4 July 2016, when the English proceedings were first issued.

    2. The judge impermissibly reviewed the jurisdiction and merits of the decisions of the Polish courts.

    3. The judge was wrong to find that the mother did not have a good reason for attending the hearing on 31 October.

    4. An order for the children’s return should not have been made as it did not take proper account of their welfare.

    5. In consequence of all the above, the decision in January not to set aside the November decision was wrong.

    52. Mr Scott QC, for the father, submits that the judge was right on all these issues. He emphasises that no permission to appeal the November order has been sought or granted. On the issue of seisin, the judge was entitled to the view he reached in the light of such limited expert evidence as he had. He was also right to view the mother as having had no good reason for non-attendance. FPR 27.3 adds an important element to the analysis found in cases such as Mohun-Smith and should mean that the family court is less indulgent than the civil court might be. The judge was also right to find that the Evidence Regulation did not apply, as oral evidence was not going to be heard at the set-aside hearing. The court was not obliged to make a request to Poland; it was sufficient to give the mother an opportunity to attend, but she had spurned it. Finally, if the appeal is allowed, Mr Scott fairly accepted that this court could substitute its own conclusion on the substantive issue of jurisdiction for that of the judge, but urged that the better course would be to remit the matter for a rehearing, which would give his client the opportunity to file further evidence.

    Conclusions

    53. Neither parent can be proud of their actions. It is understandable that the judge was concerned at the mother’s removal of the children from England without the father’s knowledge and agreement, not once but twice, and by her reluctance to participate in these proceedings except on her own terms. He was also clearly bemused at the Polish court’s reversal of its original ruling on jurisdiction. I have nevertheless concluded that his decision to refuse the mother’s application for the reopening of his November decisions was wrong in a number of ways.

    54. Dealing firstly with the mother’s non-attendance, the judge gave no weight to her argument, subsequently reinforced by the Polish authorities, that she should have been given the opportunity to give evidence under the procedure contained in the Evidence Regulation, with arrangements for that being made court-to-court. Instead, by his ruling on 22 November 2017, he concluded that the Regulation did not apply to the set-aside application because no oral evidence would be taken. But the relevant question was rather whether the Regulation might have applied to the main hearing when, by virtue of Hayden J’s order, oral evidence was due to be taken. The judge did not consider this issue in either of his judgments. Had he done so, he could not have concluded that the mother’s position was completely meritless, bearing in mind the advice she had received from the Polish authorities and, apparently, from her Polish lawyers. The fact that this scheme of things did not accord with the regime laid down by the English court at a hearing in which she did not participate was incorrectly treated by the judge as conclusive in a case that at least arguably engaged the Regulation.

    55. I would also reject Mr Scott’s submission that rule 27.3 should lead the court in family proceedings to depart from the approach endorsed by this court in Mohun-Smith. Where there is a reasonable prospect of success the court should not take a very rigorous approach to what constitutes a good reason for non-attendance, particularly when it is considering an international case with a foreign litigant in person.

    56. The mother’s position was undoubtedly frustrating to the father and to the court, which understandably wanted to use the valuable time allotted to this case to resolve the issues in a way that was fair to both parents, and not just to the mother. Despite that, I conclude that the judge misevaluated the issue under rule 27.5(3), in that he held the Evidence Regulation to be irrelevant, and that (in the light of the jurisdictional merits discussed below) he took an unduly rigorous approach to the mother’s explanation for non-attendance.

    57. The mother was then required to show that she would have had a reasonable prospect of success on the question of jurisdiction and/or summary return had she attended the main hearing. It is therefore necessary for this court to analyse these issues, even though they arise indirectly via the appeal from the January order, rather than directly through an appeal from the 14 November order. In any event, as Hamblen LJ noted in the course of the argument, it was the judge who set matters on the route to an application to set aside his November order, rather than requiring the mother to appeal.

    58. On the question of jurisdiction, the first issue is whether the Polish court became seised on 2 June 2016. There is no doubt that it did, on the lodging of the mother’s application.

    59. The next, and critical, issue is whether the Polish court remained seised between 14 July 2016 (when the mother’s application was dismissed) and 5 August 2016 (when it was granted), or whether, as the judge found, seisin was lost by virtue of the decision of 14 July 2016, with the result that the English proceedings that had begun on 4 July 2016 then took precedence.

    60. On this issue, the judge had little help at the main hearing, with the father in person, the mother absent and the expert evidence in moderate disarray. He carried out his own analysis and concluded that the mother had made a fresh application on 1 August 2016.

    61. Under BIIa, where there are proceedings in more than one Member State, seisin is the gateway to establishing which proceedings take precedence. One must therefore identify what were the relevant “proceedings” for purposes of Arts. 16 and 19 of BIIa. Here, the position under the domestic law of the Member State becomes significant. As these are domestic proceedings, the answer is in all normal circumstances one that the domestic court is best placed to provide. Here, it is in my view of considerable significance that the Polish courts of first instance and of appeal considered that their seisin had continued uninterrupted since 2 June 2016 – see paragraphs 13 and 15 above. That was something to which the judge was obliged to give very considerable, and arguably decisive, weight. I would also demur from his dismissal of the fact that the mother’s application had continued under the same file number as “a very lightweight factor”, when it was consistent with the Polish court’s own interpretation of the status of its proceedings.

    62. In his first judgment the judge noted the decision in Moore v Moore (above) on the consequences for ongoing seisin of an appeal against a refusal of jurisdiction, citing this passage from that decision:

    “103. The effect of an appeal from a decision by the court first seised that it has no jurisdiction does not appear to be settled by authority: c.f. Dicey, Morris & Collins, Conflict of Laws, 14th ed. 2006, paras 12-047, 12-062; Briggs and Rees, Civil Jurisdiction and Judgments, 4th ed 2005, para 2.205. It is true that a judgment for the purposes of Brussels I is final even if an appeal is pending: e.g. Articles 37 and 46. But the object of Article 27 is to prevent irreconcilable judgments, and as a matter of policy it would be very odd if proceedings in the court second seised could continue even if on appeal the jurisdiction of the court first seised is established. Consequently, we consider (contrary to the view of the judge) that Article 27 applies until the proceedings in the court first seised are finally determined in relation to its jurisdiction. That would mean that the expression in Article 27.1 "until such time as the jurisdiction of the court first seised is established" should be interpreted to include the case where the court first seised has declared that it has no jurisdiction, but an appeal is pending against that decision …”

    63. In his second judgment, the judge also noted that there is no case that decides that a successful application to set aside a decision refusing jurisdiction restores seisin. For my part, I can see no reason why the decision of this court in Moore should not apply equally, or indeed a fortiori (with stronger reason), to a regularly-constituted application to set aside as it does to an appeal. This is a further reason why I cannot share the judge’s interpretation of the Polish court’s seisin.

    64. The judge’s analysis of the issue of seisin was accompanied by his own evaluation that the children had “obviously” been habitually resident in England, both on 2 June and 4 July. This in turn led him to characterise Judge Rzeznik’s first assessment as correct and her second assessment as incorrect. In my view, these remarks cannot be regarded as observational or incidental, but were integral to the judge’s critique of the approach of the Polish court and to his conclusion that exclusive jurisdiction lay with the English court. Whatever its merits, the critique amounted in a review of jurisdiction and of substance that was impermissible by virtue of Articles 24 and 26.

    65. I next come to the question of service. The judge’s conclusion at paragraph 33 of his first judgment was that in order to seise the Polish court definitively it was necessary to serve the process on the father. That is indeed what the expert evidence said but, as Moylan LJ noted during the hearing, it is not correct as matter of EU law. A court is seised when proceedings are “lodged”, but subject to the proviso that the applicant has not failed to take the required steps for service to be effected. In this case, it seems that the court was responsible for service, and the judge had no evidence that could have led him to conclude that the mother was in default so as to trigger the condition that would remove seisin from the Polish court. This issue therefore could not represent the obstacle to the mother’s case that the judge considered it to be.

    66. For these reasons, I have concluded that the judge’s approach to the question of seisin, and consequently to the question of jurisdiction, was also incorrect.

    67. The overall consequence is that the mother’s application to set aside the 14 November 2017 order should have been allowed on the basis that she had had a good reason for non-attendance and a reasonable prospect of success within the terms of FPR 27.5.

    68. I am also of the view that, even if the English court had jurisdiction, the judge was wrong to direct the summary return of the children to England. They had been in Poland for 18 months by the time of the January order. They were subject to active Polish proceedings in which the father had participated, and the Polish court had specifically declined to order their return, both at first instance and on appeal, and had placed conditions upon the father’s contact. In these circumstances, an order for summary return into the alternating care of each parent was an exceptionally strong order and one that required strong justification,

    69. The judge’s reasoning is contained in this paragraph:

    “42. The final question set for me by the order of Mr Justice Hayden is this: if this court has primary jurisdiction to determine welfare issues, should the court order the summary return of the children to this jurisdiction? Although the order of 5 August 2016 did not explicitly order the mother to return the children by 10 August 2016, there was a clear judicial expression that unless the mother did so she would be in breach of the prohibited steps order. This militates strongly in favour of making an effective order to bring the children back to the place which has exclusive jurisdiction over them. On the other hand, the children have now been in Poland for 15 months. This might suggest that in practical terms it would be better for the Polish court to deal with the matter and that I should make an order transferring the case to Poland under article 15. However, for the reasons set out above I am quite sure that were I to do so the father would not feel that he had any prospect of gaining a fair trial. There is also the important principle to be observed that children should be in the place from which they have been wrongfully taken.”

    It can be seen that the mother’s breach of the orders of 18 July and 5 August 2016 weighed very heavily with the judge, indeed it was the single reason for his decision that the children’s immediate return was in their best interests.

    66. An order that summarily changes a child’s country of residence can sometimes be based on a single-issue assessment, as where the removal from the home country is very recent. Otherwise, the court will need at least some dependable information on a range of welfare checklist factors. The approach of the Supreme Court in Re J (a child) [2005] UKHL 40, considering the reverse fact-pattern of whether children should be summarily returned from this jurisdiction to a non-Hague country, is helpful. Baroness Hale said this:

    “32. The most one can say, in my view, is that the judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that proposition will vary enormously from case to case. What may be best for him in the long run may be different from what will be best for him in the short run. It should not be assumed, in this or any other case, that allowing a child to remain here while his future is decided here inevitably means that he will remain here for ever.

    33. One important variable, as indicated in Re L, is the degree of connection of the child with each country. This is not to apply what has become the technical concept of habitual residence, but to ask in a common sense way with which country the child has the closer connection. What is his 'home' country? Factors such as his nationality, where he has lived for most of his life, his first language, his race or ethnicity, his religion, his culture, and his education so far will all come into this.

    34. Another closely related factor will be the length of time he has spent in each country. Uprooting a child from one environment and bringing him to a completely unfamiliar one, especially if this has been done clandestinely, may well not be in his best interests. A child may be deeply unhappy about being recruited to one side in a parental battle. But if he is already familiar with this country, has been here for some time without objection, it may be less disruptive for him to remain a little while longer while his medium and longer time future is decided than it would be to return.”

    67. In the present case, the judge did not have enough reliable information to know where the children’s best interests lay. They had been in Poland for a considerable period of time and had had no recent parenting from their father. From their point of view, shortcomings in the behaviour of adults, and of their mother in particular, could be of little immediate consequence. At the least, the judge should have considered obtaining further information, for example through the Article 55 mechanism, about the children’s perspective and current circumstances before considering a return order and an order for their transfer into equal shared parental care. The mother’s ability to apply for protective measures did not compensate for this lack of primary information. In the absence of such an analysis, an order for summary return should not have been made.

    68. I would add that the judge’s comment on the fairness of the Polish court’s treatment of the father, arising from his overall view of the case, was, I think, unfortunate. The purpose of the Brussels regulation is to foster practical comity between jurisdictions for the benefit of families. This calls for an acceptance of outcomes that are on occasion surprising or unpalatable. Where a case does not fall within the grounds for the non-recognition of orders under Article 23, criticism of the courts of other jurisdictions is not warranted.

    69. I would therefore allow the mother’s appeal and set aside the order of 30 January 2018.

    70. The question then arises as to whether the matter should be remitted to the Family Court for it to reconsider the order of 14 November 2017. I see no purpose in that. At issue is a matter of law. This court is in as good a position as a trial court resolve it, and has had to do so for the purpose of the appeal. Both parties have filed evidence and there is nothing more that could be said if the matter were remitted. That course would cause even further delay and expense and would not serve the children’s interests. This court should therefore make its own determination on the underlying issue of jurisdiction.

    71. Looking at the material before us, extensively summarised above, I consider that it leads to the conclusion that the Polish court became and has remained seised of jurisdiction in relation to these children as from 2 June 2016. Accordingly, the English courts must under Art. 19(3) decline jurisdiction in relation to matters of parental responsibility in favour of the courts of the Republic of Poland. I would therefore allow this appeal and dismiss the proceedings brought by the father in Brighton in July 2016. The outcome is very far from resolving the many difficulties in this family’s situation, but at least it removes the additional obstacles that arise from the existence of irreconcilable decisions.

    Lord Justice Moylan:

    72. I agree.

    Lord Justice Hamblen:

    73. I also agree.

Judgment, published: 16/07/2018

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Published: 16/07/2018

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