A mother has failed in her attempt to have her three children taken out of their father’s custody and sent to live with her in Poland.

The mother and father were both Polish. They returned to Poland in 2012 with their children. The father later moved to England on his own to find work. Their marriage came to an end four years later.

A Polish custody order was made in 2016 vesting custody and care of the children with the mother in Poland. It provided that the father could have contact with the children including one month every summer holiday.

In 2019, the children visited their father in England but did not return to Poland. The mother issued proceedings seeking their summary return to Poland, which was refused. The father attempted to vary the custody order due to concerns over the mother’s harsh parenting and alleged alcohol abuse, arguing that the children themselves did not wish to return. That application failed.

The mother then applied for the summary return of her children under the 1980 Hague Convention.

The judge found that the children were habitually resident in Poland at the material time that the mother’s rights of custody were breached.

However, one of the children, aged 15, objected to returning to Poland, and that objection fell within the exceptions offered by Article 13 of the 1980 Hague Convention.

There was also a grave risk of harm to the children if they were to return. The judge decided not to order the summary return of the children.

The mother successfully applied for registration of the 2016 Polish custody order in the UK under Council Regulation 2201/2003.

In 2021, the Polish court reconsidered the children’s circumstances and made an interim order that the children remain with the father in England. It explicitly varied and substituted the 2016 custody order

The father submitted that the 2016 custody order should not be recognised.

The High Court found in his favour. It held that the 2016 custody order was irreconcilable with the later judgment relating to parental responsibility given in Poland in 2021.

It did not matter that the Polish judgment was an interim order only because it had explicitly replaced the 2016 order.

Allowing the registration of the 2016 custody order to stand and be enforced would be at variance to an unacceptable degree with the Polish 2021 order. The order registering the 2016 custody order was set aside.

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Case Citations: K v K Family Division, [2021] EWHC 1846 (Fam) Cobb J

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