Elena Smolik (A Child), Re

In a child-abduction case, an application for return may properly be made in the child’s home country where the applicant lacks access to free legal assistance in the country to which the child was taken. Guidance that an application should ordinarily be made in the country of refuge does not create a blanket prohibition on proceedings in the home court, particularly where the earlier authority concerned a different procedural regime. The court may also permit publication of the judgment and the child’s photograph where publicity may assist recovery, provided the child’s and parents’ privacy is carefully respected.

The mother applied for the return of her nearly five-year-old daughter, who had been taken by the father from England to Slovakia for an agreed holiday and was not returned. The father remained in Slovakia with the child and had prevented contact between mother and daughter. The father did not attend and was not represented. The mother had legal aid in England but had been advised that equivalent assistance was unavailable in Slovakia. The central issues were whether the application could properly be made in England, the effect of guidance in Re S (Abduction: Hague Convention or BIIa), and whether publicity should be permitted to assist the child’s recovery.

1. Return order. The court made a fresh order for Elena’s return and gave the invited procedural directions.
2. Proper forum. Although an application through the Central Authority in Slovakia would ordinarily have been available, it was proper for the mother to apply in England because free legal assistance was not available to her in Slovakia. Slovakia’s reservation under article 42 of the Hague Convention, made pursuant to article 26, meant that it was not bound to assume specified legal and court costs except where covered by its legal-aid system.
3. Effect of Re S. The observation in Re S (Abduction: Hague Convention or BIIa) that, absent good reason, an application in Brussels II cases should be made in the country to which the child had been taken was expressly treated as obiter. It did not impose a blanket ban on Hague applications in the home country. The decision also concerned a Brussels II case, whereas the present application was considered under the Hague Convention.
4. Provisional assessment. Without making findings, because the evidence had not been tested and the father had provided no evidence, the court considered that Elena was habitually resident in England and Wales when taken to Slovakia and that the mother’s account of wrongful retention was highly likely to be correct.
5. Publicity and privacy. The judgment was permitted to be published, and the mother was permitted, if she wished, to issue a photograph of Elena with the judgment or selected paragraphs. The permission was intended only as a possible aid to recovery and did not require contact with the press.

First-instance decision. No prior appellate decision is stated in the judgment.