H v B (BIIa: Enforcement of Domestic Return Order)

Where a child habitually resident in England and Wales has been wrongfully retained in another EU Member State, a domestic return order may fall within the enforcement scheme in Chapter III of Council Regulation (EC) 2201/2003 (BIIa). The court of origin must provide the Annex II certificate under Article 39 at the request of an interested party. It is not for that court to decide whether the order should be recognised or enforced in the receiving Member State, or whether enforcement should proceed alongside pending proceedings under the 1980 Hague Convention. Those questions belong to the receiving court. A further domestic return order may nevertheless be made where there is good reason, including no material change to the existing best-interests assessment and a risk that refusing relief would prejudice or confuse the foreign proceedings.

The child, V, was retained in Poland by his mother after a permitted holiday. The English courts had made several summary return orders under the Children Act 1989, and a further order had been made in the High Court on an uncertain jurisdictional basis. The father sought to enforce those orders in Poland under Chapter III of BIIa while separate proceedings under the 1980 Hague Convention were pending there.

The court considered whether it should determine the effect of the concurrent Hague proceedings on enforcement under BIIa, whether a further return order should be made, and whether a penal notice and Annex II certificate should be issued.

1. Enforcement jurisdiction. The court held that the question whether the father could pursue recognition and enforcement in Poland under Chapter III of BIIa, notwithstanding the pending Hague proceedings, was for the Polish court. The English court had no jurisdiction to determine that issue. The Polish court would decide whether to recognise the orders and declare them enforceable under Article 28(1), applying the grounds in Article 23.
2. Annex II certificate. Return orders made in the exercise of parental responsibility fall within the enforcement provisions of Chapter III. Under Articles 37 and 39, the court of origin must provide the Annex II certificate at the request of an interested party. It has no discretion to refuse that step merely because Hague proceedings are pending.
3. Domestic return orders. Following Re S (Abduction: Hague Convention or BIIA) [2018] 2 FLR 1405, the general approach is to defer a domestic summary return order until the Hague proceedings have been determined, absent good reason to do otherwise. That approach did not require the court to undo or disregard the existing orders, which had not been appealed.
4. Further order. In the particular circumstances, there was good reason to make a further return order and attach a penal notice. V had remained outside his habitual residence since September 2019; previous judges had considered return to be in his best interests; the mother had failed to comply or provide adequate medical evidence; and no changed circumstances justified a different conclusion. The earlier orders were also out of date or jurisdictionally uncertain, and refusing a further order risked confusing or prejudicing the Polish proceedings.
5. The court therefore declined to determine the Polish enforcement question, made a further return order under the inherent jurisdiction, attached a penal notice, and directed the provision of an Annex II certificate.

This was a first-instance application. Earlier return orders had been made in the Children Act proceedings by HHJ Robinson and in the High Court by HHJ Robertshaw sitting as a Deputy High Court Judge. Those orders had not been appealed.