TJ v MS (Article 11(6-8) BIIA: Relocation: Art 24 EUCFR)

In an Article 11(6)–(8) Brussels II(a) application following a Hague Convention non-return decision, the court may determine custody and welfare as if the abduction had not occurred. The inquiry is welfare-based and may include an order for the child’s return. In an international relocation case, the court must conduct a holistic, non-linear comparative evaluation of the competing proposals, applying the welfare checklist and proportionality. Particular weight must be given to preserving the child’s relationship and direct contact with both parents under Article 24.3 of the EU Charter. The court ordered the child’s return because the benefits of regular involvement with both parents outweighed the risks associated with relocation.

The father applied under Article 11(6)–(8) of Brussels II(a) after the mother retained their young child in Poland. The Polish courts had refused return under Article 13(b) of the 1980 Hague Convention, and the father’s appeal had been dismissed. The parties invited the High Court to determine where the child should live and the arrangements for contact with each parent.

The central issue was whether the child’s welfare was best promoted by returning her to England, where she could have regular involvement with both parents, or by remaining in Poland with her mother and maternal family, with contact with her father conducted across national borders.

1. Jurisdiction and nature of the inquiry. Article 11(6)–(8) of Brussels II(a), operating with Article 10, enabled the court of the child’s former state of habitual residence to determine custody after the Polish non-return decision. The court exercised a welfare jurisdiction under section 1 of the Children Act 1989. It had the same range of powers as it would have had if the child had not been abducted, including power to order summary return where that promoted the child’s welfare.
2. Relocation approach. The court applied the approach summarised in Re F (A Child) (International Relocation Cases), namely paramount welfare, the welfare checklist, heightened scrutiny of proposals interfering with the child’s relationship with a parent, and a holistic, non-linear comparative evaluation of the competing plans. Earlier guidance such as Payne was confined to identifying potentially relevant issues and was not a prescriptive test.
3. Rights and proportionality. An international relocation was likely to affect the child’s Article 8 rights. The court therefore conducted a proportionality assessment. The child’s right to maintain personal relations and direct contact with both parents under Article 24.3 of the EU Charter was engaged and was particularly relevant in the abduction context.
4. Application. The mother would probably experience stress and some anxiety on returning to England, but the evidence did not establish a high risk of serious psychological breakdown or inability to care for the child. By contrast, remaining in Poland carried a high risk that the father’s fragile relationship with the child would be disrupted by opposition to contact, family conflict and further litigation. The proposed cross-border contact arrangements were also considered vulnerable in practice.
5. The father’s proposal better promoted the child’s welfare overall. The court ordered her return to England by the beginning of January 2018, with the child living with the mother and spending progressively increasing time with the father. The Article 42 certification criteria were satisfied.

First-instance determination under Article 11(6)–(8) of Brussels II(a), following refusal of return by the Polish court under Article 13(b) of the 1980 Hague Convention and dismissal of the father’s appeal in Poland.