PH v AH

In Hague Convention child-abduction proceedings, the court must balance the need for prompt determination with the child’s welfare, both parents’ entitlement to a fair hearing and humane treatment of the parties. Where the abducting parent’s advanced pregnancy makes attendance and travel impracticable, the court may adjourn the final hearing until after the birth and allow reasonable recovery time. The court may accommodate the parent by listing the hearing locally, while preserving firm directions for attendance and production of the child. A child’s expressed preference may be relevant to the practical consequences of an immediate return, even where it does not amount to an objection under the Convention.

The father applied for the return of his 11-year-old daughter to Poland under the Hague Convention. The child had lived with him in Poland for about two years before the mother brought her clandestinely to England. Proceedings were issued promptly, but the final hearing was adjourned after the mother sought legal aid and was relisted for 9 May 2016.

The mother then notified the court that she was 38 weeks pregnant and medically advised not to undertake the journey from Liverpool to London. The central issues were whether the court should proceed in her absence, compel her attendance, or adjourn the return application.

1. Adjournment. The final hearing was adjourned until 8 July 2016, after the mother’s expected delivery and a reasonable period for recovery. The court could not fairly or humanely determine the return application on 9 May when the mother’s advanced pregnancy made travel from Liverpool impracticable.
2. Relevant considerations. Hague Convention jurisdiction had to be exercised with the child’s welfare in the forefront, while enabling both parents to have a fair hearing and treating both parties humanely. The need to preserve a school place in Poland did not outweigh those considerations.
3. Immediate return. Proceeding in the mother’s absence and making an order requiring the father to collect the child in Liverpool would have created an unacceptable prospect of a forced handover. Although the child’s preference to remain in England did not constitute an objection for Hague Convention purposes, it was relevant to the welfare and practical consequences of such an order.
4. Directions. The relisted hearing was fixed in Liverpool to facilitate the mother’s attendance. The mother was required to attend and bring the child, subject to properly evidenced medical impossibility. The order carried a penal notice warning of arrest and contempt consequences. Existing Skype contact was continued, while further direct contact was encouraged but not ordered in the mother’s absence.
5. The Cafcass officer was directed to see the child again before the hearing. She need not attend or be cross-examined, and her reports could stand on their contents.

First-instance case. The final hearing was adjourned and relisted before a High Court judge sitting in Liverpool on 8 July 2016.