Juszkiewicz v Juszkiewicz

In an application under the Hague Convention for the return of a child wrongfully removed from Poland, the court must order return where no applicable defence is established. A child’s objection requires evidence that the child objects to returning, viewed in light of age and maturity. A grave-risk defence under Article 13b cannot succeed where adequate protective arrangements have been made after return. The court may assume the allegations underlying the asserted risk for the purpose of deciding the return application without determining their truth, particularly where the courts of the state of habitual residence are better placed to investigate them. The return order does not determine where the child or accompanying parent may live in the longer term.

The applicant father sought the return of his eight-year-old daughter to Poland under the Hague Convention. The child and both parents were Polish, and the child had lived in Poland until the respondent mother brought her to England in July 2017. The mother accepted that the child was habitually resident in Poland, that the father retained rights of custody, and that the removal was wrongful because it was without his consent.

The mother relied on the child’s objection and the Article 13b grave-risk defence. The court considered the child’s reported wishes and feelings, the allegations concerning the father’s alcohol use and aggression, and protective undertakings offered by the father.

1. Wrongful removal. The child was habitually resident in Poland, the father retained rights of custody, and he had not consented to the removal. The removal was therefore wrongful for Convention purposes.
2. Child’s objection. The evidence did not establish that the child objected to returning to Poland. The child expressed positive feelings about Poland, her family and her father, and was reported to miss them. The Article 13 objection defence therefore failed.
3. Grave risk. The court could not determine the truth of the mother’s allegations at a summary return hearing, where there was assertion and denial and no oral evidence. It nevertheless assumed, for the purpose of the decision, that the essential allegations were true. Even on that assumption, the proposed return did not expose the child to an unmanageable grave risk because the father offered protective undertakings.
4. Protective arrangements. Council Regulation (EC) No 2201/2003, Article 11(4), required return where adequate arrangements had been made to secure the child’s protection after return. The undertakings, including exclusion zones and no direct contact with the child without the mother’s written agreement, were adequate until the first notified hearing before the Polish court.
5. Disposition. The Article 13b defence was unsustainable. The court ordered the child’s return to Poland forthwith. The order expressed no view on the parties’ longer-term living arrangements, which required determination in Poland.