P v A (Summary Return)

Under the Hague Convention, a child’s removal is wrongful where the child was habitually resident in another contracting state and removal breached custody rights, including an effective parental veto under the applicable domestic law. Regular and meaningful contact may establish such a veto where relocation would prevent its exercise. The child’s views must be assessed carefully, particularly where communicated through an interpreter; a willingness to return temporarily or to await proceedings does not necessarily amount to an objection. Where the Convention conditions are satisfied and no exception is established, the court’s residual discretion not to order return should be exercised only on a proper basis. The child’s longer-term welfare and future residence may more appropriately be determined by the court of habitual residence.

The applicant father sought the summary return of his 11-year-old son to Poland under the Hague Convention, or alternatively under the inherent jurisdiction. The child had lived in Poland from birth and was brought to England by his mother in June 2015 without the father’s consent. The parents’ Polish divorce order entrusted day-to-day parental responsibility to the mother but preserved the father’s involvement in education and other significant matters. The central issues were whether the father had custody rights giving him a veto over removal, whether the child objected to return, and whether the court should nevertheless exercise its residual discretion against return.

1. Return ordered. The court ordered the child’s return to Poland under the Hague Convention.
2. Under Article 3, the child was habitually resident in Poland. The effect of Polish domestic law and the 2011 divorce order was that the father’s established and regular relationship with the child gave him a right of veto over relocation. The contact was more frequent than the mother claimed, fitted the father’s work pattern, was meaningful, and included a holiday requiring parental co-operation.
3. The mother knew that the father did not consent to removal. His consent was therefore absent. The removal was wrongful within the Convention framework.
4. The child was not objecting to return for the purposes of Article 13. His statements contemplated a temporary stay in Poland while the proceedings concluded, followed by a return to England. They did not amount to a clear objection, particularly given the use of an interpreter.
5. The court considered the residual discretion not to order return. The child’s Polish nationality, family connections, life in Poland, the father’s prompt action, the lack of meaningful contact in England, and his limited integration at school provided no sufficient basis for exercising that discretion.
6. The alternative inherent-jurisdiction route did not need to be determined. Any question concerning the child’s future residence and welfare would be better decided by the Polish court, which had made the parental order and was better placed to investigate his circumstances in Poland.