S, Re

B e f o r e :

Mr A. Verdan QC (Sitting as a deputy high court judge) ____________________

____________________

Mr James Turner QC and Mr Edward Bennett (instructed by Brethertons) for the Applicant Mr Henry Setright QC and Ms Cliona Papazian (instructed by Access Law) for the First Respondent Ms Katy Chokowry (instructed by Cafcass Legal) for the Second, Third and Fourth Respondents ____________________

HTML VERSION OF JUDGMENT ____________________

Crown Copyright ©

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this

Judgment and that copies of this version as handed down may be treated as authentic.

Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties'

representatives by email. The date and time for hand-down is deemed to be at 10.30am on 30.10.20.

Introduction

In this case, I am concerned with three children: A aged 14 years 9 months, I aged 10 years 9 months and E aged 8 years 11 months. A's age is significant for reasons which will become apparent.

Their mother is KS; their father is MS.

The mother pursues two applications:

The mother was represented by Mr Turner QC and Mr Bennett, the father by Mr Setright QC and Ms Papazian and the children, by Ms Chokowry (through their Children's Guardian Ms Huntington). I am grateful to them all for their extensive and helpful oral and written submissions.

The case was listed for final hearing on 14-15.09.20. The hearing took place remotely via the zoom platform in light of the current Covid-19 situation.

I have read all the relevant documents in the 481-page main bundle and 860-page authorities' bundle prepared for this hearing. The parties agreed that there was no need for oral evidence although, Mr Turner made some points about the form and content of Ms Huntington's reports which in some respects he challenged.

Due to the lack of time and the need to consider the complex issues arising in this case, I reserved judgment.

The parties' overall positions

The mother contends that the children have been wrongfully retained in England and so should be returned to Poland by either route, either because the Hague defences fail or because there is a live Polish order which should be enforced. Her position is that the Polish court is seised of this case and it is for the Polish court to carry out the full welfare assessment.

The father opposes the Hague return application, on the basis of Article 13(b) and the objections of the children. If the defences succeed, he submits that the Polish order should not be enforced by this court.

The children, through Ms Huntington, oppose a return to Poland on the same grounds but additionally she questions whether the children's habitual residence changed shortly after arrival in this jurisdiction.

Background

I refer to the Chronology of key dates and the Case Summary.

The parties are Polish nationals. They married on 5.08.06. The children were born in the USA at a time when the parties were residing there.

The children lived in the USA with their parents until May 2012 when the family relocated to Poland. In 2014, the father moved to England for employment and has remained here. The parties separated in 2015.

At the time, the mother and the children continued to live in Poland and the children attended school there.

The parties were divorced on 19.12.16. Orders were made in Poland that the children live with the mother and have contact with the father. The mother thus has rights of custody.

The father asserts that from 2017 he had concerns about the mother's care of the children.

From 2018, the children complained about the mother's treatment of them.

The mother's case is that the father was influencing the children against her.

On 14.02.18, the father applied to the Polish court for extended holiday contact for the children in the south of England, where he was then living. I understand that application was resolved, probably without a court hearing.

In around September 2018, the mother moved with the children to live with her parents in another part of Poland and the children say their treatment by the mother deteriorated.

In around May/ June 2019, A ran away from home twice. On the second occasion, A took I with her. On both occasions the children went to their paternal grandmother, some 25 km from their home with their maternal grandparents.

The mother and the father agreed that the children would, as they had done each year, spend the summer holidays with the father in England from July to 31.08.19. The father purchased return tickets for the children's return to Poland.

The father states that the children informed him that they wanted to remain in England once they arrived here on 20.07.19, now some 14 months ago. He says they disclosed physical abuse by the mother. A and I threatened to run away if they were sent back to Poland.

The father did not return the children. On 22.08.19 the mother received a somewhat strange social media message from someone she believed was a friend of the father's to say the children were not returning. It now seems a non-return was discussed or planned by the father and at least A in the preceding months.

The children began attending school in England in September 2019. The father and the children moved to a 4-bedroom house following their decision to remain in England.

On 4.09.19, the father issued an application in the local Polish court to vary the order dated 19.12.16 so that the children could live with him.

On 2.09.19, the mother had reported the abduction to the Polish police. On 6.09.19, the mother applied to the Central Authority in Poland for proceedings to be taken in England under the 1980 Hague Convention, but that application was initially misdirected to the USA, so was not issued in England until 20.01.2020. Also on 6.09.19 the mother issued an application in the court in Poland seeking an order requiring the father to return the children to Poland, but that application was subsequently stayed pending the outcome of proceedings in England.

In her written response to the father's application in Poland, the mother denied the allegations of violence and alcohol abuse. She accepted that she had been unable to spend much time with the children as they alleged because of her work commitments.

In reports dated 17.10.19 the Polish schools stated that all three children were thriving and raised no concerns.

On 27.10.19, the mother issued an application in Poland to suspend the father's application pending the outcome of the mother's Hague application.

On 31.10.19, a hearing took place in Poland, which the parties attended to consider whether the father's application for an interim change of the living arrangements of the children provided for by the order of 19.12.16 and the children were seen by the Judge. E informed the Judge that: the mother had beaten the children, they were a bit afraid of her, he had been beaten by her, she beat him with her hand several months ago, she beat I, she destroyed A's phone by hitting it against the floor, she did the same with I's, she got angry and threw everything and shouted a lot, she threw I's phone and she beat someone everyday. I stated that: the mother hit her a long time ago, the mother beat A very much, the mother beat each of them but mostly A, she was afraid of her mother, she beat A and E more than her, sometimes she was angry without reason and shouted and she destroyed A's phone and her phone. A stated that her mother mistreated and beat them, beat her the most, sometimes with her hand, she beat her when she said she wanted to live with the father, the beatings became more frequent at the maternal grandmother's home, in April she was very angry and beat her with a hangar, causing bruises on her hand and leg, she beat E from time to time, she rarely beat I. The record of the hearing states that the mother said she may have used physical punishment several times against A, that she slapped her with her hand after she had run away the second time, but that she did not use physical punishment against I and E. The mother asserted that the father had been turning the children against her and spoke of the various pressures on her. The court reserved its judgment.

The father returned to the UK with the children on 2.11.19, without the mother's consent and without seeking approval from the court in Poland.

On 8.11.19, the Polish court dismissed the father's application for an interim change of living arrangements and gave a detailed judgment. It held that the father had not proved that an interim variation of the order was in the children's best interests and that there were no grounds to the mother was at serious risk of causing physical or mental damage to the children or putting them in an unbearable situation. The children's wishes were taken into account but the court held that giving precedence to their wish to live with the father would be an over-simplification at the current stage of proceedings before full evidence had been obtained. The court noted: some of the difficulties faced by the mother were a direct result of the father's conduct such as his failure to pay maintenance and his influence of the children; the father had exaggerated some allegations against the mother, for example, that she had neglected the children's care; the inconsistency in the children's allegations; the father did not suggest physical chastisement of the younger two children; the father's actions in bringing the Polish proceedings were pre-planned and tactical to bolster his position in any Hague case; and the father's actions were designed to present the mother with a 'fait accompli.'

The father appealed this decision but the appeal was dismissed on 17.12.19.

On 4.2.20, the Polish court directed an expert report on child arrangements, for the substantive proceedings in that country, setting a two month deadline for its filing. This has not occurred.

The mother's Hague application came before this court for the first proper hearing on 25.02.20 and directions were made. Cafcass were ordered to file a 'wishes and feelings' report and to say whether the children should be separately represented. A final hearing was listed on 30.04.20.

The father's substantive application for a change of living arrangements to allow the children to live with him in England continues in Poland but on 10.03.20, was stayed by the Polish court. Poland is thus seised of this case. To date the Polish court has not made a return order.

Subsequent remote hearings took place in this court on 30.04.20, when the children were joined and Ms Huntington appointed as their Guardian and on 19.06.20, when directions were made in respect of the mother's proposed second application (for recognition and enforcement), the Guardian was directed to file a final analysis and this final hearing fixed. On the latter occasion, a direction was also made that Polish Children Services file a chronology, any assessments and relevant documents and state what their role would be in the event of a return of the children. This direction has not been complied with, as Polish Children Services apparently need a Polish order before disclosing and such an order has not been obtained.

On 22.07.20, the Polish order dated 19.12.16 was registered by order of this court.

On 13.08.20 the Polish court refused the mother's application to issue a certificate under Article 39, on the basis that there were already pending proceedings in Poland and the order dated 19.12.16 remained in force.

On the 17.08.20, the father issued a Notice of Appeal against the registration of the order of 19,12,16 on the grounds that recognition was contrary to public policy pursuant to Article 23(a) BIIa. The hearing before me on 14.09.20 was the first 'inter partes' hearing of the BIIa application. The children have not yet appealed this registration but Ms Chokowry informed me that they would wish to, depending on the outcome of this case.

Interplay between applications

I heard detailed submission on which of the mother's two applications I should hear first and the interplay between them.

I was referred to the following articles of BIIa: 11, 16, 19, 21, 24, 26, 27, 28, 31, 33, 60 and 62 and also to recital/preamble 17.

I was referred to various authorities to support the respective positions, in particular, the following first instance decisions: ET v TZ [2014] 2 FLR 373; H v B and V [2020] EWHC (Fam) 961 ; JRG v EB [2013] 1 FLR 203; SP v EB [2016] 1 FLR 228 ; MD v CT [2015] 1 FLR 213 ; E v E [2018] Fam 24 ; T v J [2006] 2 FLR 1290 and three Court of Appeal decisions: Re A [2016] 4 WLR 111 , Re S [2018] 2 FLR 1405 and Re D [2016] 1WLR 2469 . I was also referred to the BIIa Practice Guide.

Mr Turner submits that, in so far as precedence might be relevant, for the substantive proceedings in that country the BIIa application takes precedence and should be heard first (and that the Hague application is superfluous unless the BIIa application is refused). In support of this he relies in particular on:

Further Mr Turner submits that, although I am not technically bound to, I should follow the above first instance decisions unless there is a powerful reason for not doing so, relying on Willers v Joyce (No 2) [2018] AC 843 .

Mr Setright and Ms Chokowry submit the opposite, namely that I should determine the Hague application first, dismiss it and then deal with and allow the appeal against the BIIa registration.

I have considered all the points made even if I do not refer to them expressly and concluded that I should consider and determine the Hague Convention application first.

My reasons are as follows:

Hague application

The Law

The burden of proving that the removal of the children was wrongful rests on the mother. Only if that is established does the Convention apply and then it is for the father and children to establish any defences.

If it does apply, the starting point is, of course, that Article 3 of the Convention states its object is to secure the prompt return of children wrongfully removed or retained.

Habitual residence

The father abandoned this jurisdictional point on 30.04.20 and although Mr Setright and Ms Papazian in their written skeleton argument submit that the children are habitually resident here, in oral submissions Mr Setright did not advance this point. However, the children through Ms Chokowry have and so the court needs to determine the habitual residence of the children immediately before their removal/retention and whether A and her siblings intended to change their habitual residence before or shortly after their arrival.

Habitual residence is a factual assessment, as set out in A v A [2014] AC 1 where Lady Hale went on to 'draw the threads together' in para 54:

As was explained in that case the factors to be considered when determining habitual residence include: the duration, regularity, condition and reasons for the stay, the child's nationality, the place and condition of attendance at school, linguistic knowledge and the family and social relationships of the child.

Ms Chokowry also brought to my attention the following cases.

Re B [2020] EWCA Civ 1187 , in which the Court of Appeal has given recent consideration to the issue of the speed with which a child can acquire a habitual residence in light of the existing Supreme Court authorities. Moylan LJ stated as follows:

In Re LC [2014] 1 AC 1038 , the Supreme Court considered that the state of mind of an older child was relevant to the issue of whether he or she has acquired a habitual residence. In so doing, Lord Wilson stated as follows:

In addition, in determining this issue, I shall ensure that the children are at the centre of the exercise and I adopt Hayden J's approach to this question in Re B [2016] 4 WLR at para 18:

Ms Chokowry submits that the children in this case acquired a habitual residence in this jurisdiction very quickly in light of their state of mind not to return to Poland and she relies on what the children told the Guardian about their intentions and plans and the girls' long-standing wish to live with their father and their familiarity with England. A told the Guardian that she was expecting to stay in England when she came to visit her father in July 2019. She further shared that her father had agreed that she could come to live with him from April 2019. I told the Guardian that she had known from the outset that they would be staying in England for longer than a month, and that this had been discussed in Poland. She had come to England with the expectation of staying for good. E shared with the Guardian that he believed he was travelling to this jurisdiction for a holiday and decided to remain here when he knew his sisters had decided to stay here.

Ms Chokowry suggests the children achieved habitual residence in this jurisdiction by 31.08.19, being the date the mother says they were retained i.e. the planned return from the summer holiday.

As already referred to, the children came here on 20.07.19 and in my view that is the date of the alleged wrongful removal/retention given there was an element of pre-planning. At the very latest the retention date is 22.08.19 when the mother received the message referred to at para 24 above.

I have considered Ms Chokowry's submission on the issue of habitual residence carefully but do not accept it. In my clear view, the children's habitual residence remained in Poland. My reasons are as follows:

It therefore follows that the father's removal of the children or his retention of them was wrongful and breached the mother's custody rights. This court is thus required to return the children unless the father or children satisfy it that one of the exceptions is made out.

Article 13 defences

It is therefore necessary to consider the defences.

Article 13 provides (insofar as is relevant) that:

Child's objections

The law on a child's objections under Article 13 of the Convention is set out in detail in Re M [2016] Fam 2 and I have regard to the clear guidance in that case:

In addition to the above, the following principles remain relevant, and are applicable in this case:

Thus, if the court finds that this defence is made out, then the Hague Convention does not require the court to return the child. The court would however still be required to consider the effect on the child of disregarding his/her views when considering whether to exercise its ensuing discretion regarding the child's return.

I bear in mind also, that in normal circumstances, it is in the best interests of children that they be returned to the country whence they have been wrongfully removed/retained and it is only in exceptional circumstances that the court has a discretion to refuse immediate return.

Grave risk of harm

If the court does not accept any of the above arguments, then it can turn to the defence raised in terms of Article 13(b) of the Convention, namely that ordering the children's return would place them in an intolerable situation and therefore expose them to a grave risk of harm.

As Ward LJ observed in Re C [1999] 1 FLR 1145:

The Supreme Court considered the test to be applied when assessing whether this defence was made out in Re E [2012] 1 AC 144 . The applicable principles may be summarised as follows:

More recently, the Court of Appeal in Re C [2019] 1 FLR 1045 gave guidance on the issue through Moylan LJ. His Lordship quoting paragraphs 35 and 36 of Re E (above) stated as follows:

"36. There is obviously a tension between the inability of the court to resolve factual disputes between the parties and the risks that the child will face if the allegations are in fact true. Mr Turner submits that there is a sensible and pragmatic solution. Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country. This is where arrangements for international co-operation between liaison judges are so helpful. Without such protective measures, the court may have no option but to do the best it can to resolve the disputed issues.

"52. The judge's rejection of the Article 13b argument was also criticised by the appellant. She was said wrongly to have rejected it without adequate explanation and to have failed to follow the test set out in §36 of Re E in her treatment of the mother's allegations. In summary, the argument was that she should have adopted the "sensible and pragmatic solution" referred to in §36 of Re E and asked herself whether, if the allegations were true, there would be a grave risk within Article 13b and then, whether appropriate protective measures could be put in place to obviate this risk. That would have required evidence as to what protective steps would be possible in Lithuania, the submission went.

As was made clear in Re S, at [22], the approach "commended in Re E should form part of the court's general process of reasoning in its appraisal of a defence under the article". This appraisal is, itself, general in that it has to take into account all relevant matters which can include measures available in the home state which might ameliorate or obviate the matters relied on in support of the defence. As referred to in Re D, at [52], the English courts have sought to address the alleged risk by "extracting undertakings from the applicant as to the conditions in which the child will live when he returns and by relying on the courts of the requesting state to protect him once he is there. In many cases this will be sufficient" (my emphasis).

In OCI v Romania (Application No: 49450/17) [2019] 2 FLR 748 the European Court of Human Rights held that:

Macdonald J stated in Uhd v McKay [2019] 2 FLR 1159 that:

Ms Chokowry also referred to two further cases. Re LC [2015] 1 FLR 1019, a case involving 4 children under the age of 12, where Wood J concluded that if the children were separated with 3 being returned to Spain, there would be a grave risk of psychological harm to each and a grave risk that each would be placed in an intolerable situation, given their real and deep attachment to each other and the support they offered each other.

Z v D [2020] EWHC 1857 (Fam) is a recent example of a case where an Article 13(b) defence was established in respect of a 12 year old, whose mother sought her summary return to Brazil, where it was alleged the mother had beat her, causing bruising.

In considering the Article 13(b) defence, the court is bound to consider what protective measures can be put in place. Of course, the court is unlikely to refuse to return a child on the basis of Article 13(b) if it is established that adequate arrangements have been made to secure the protection/welfare of the child after his or her return.

Article 11(4) of BIIa places on the left-behind parent the burden of establishing that adequate protective measures have been made to protect the child after her return.

Macdonald J helpfully summarized the principles drawn from recent Court of Appeal decisions in respect of protective measures in Z v D at para 29:

Williams J summarised the use of protective measures thus in Re A [2019] 2 FCR 673:

"A court cannot refuse to return a child on the basis of Article 13(b) of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return".

It is also well established that this court should accept that, unless the contrary is proved, the administrative, judicial and social service authorities of Poland are equally adept in protecting children as those here; although this court will still need specific details of the measures it is proposed those authorities will take for that evaluative exercise to be undertaken.

The primary focus is on the risk of harm to the child. The situation the child will face on return depends crucially on the protective measures which can be put in place to ensure that the child will not have to face those risks of harm.

Discretion

In addition to the points made above, in H v K, B, M [2018] 1 FLR 800 Macdonald J summariSed the guidance from Re M and Re F as follows:

In Re WF v FJ, BF & RF [2011] 1 FLR 1553 Baker J, as he then was, stated that in a case involving siblings, the court was to consider the position of the sibling group together and exercise its discretion whether or not to return the children 'in the round' rather than establishing whether or not the gateway to discretion was open in the case of each child before going on to consider the exercise of discretion.

Put simply, each case turns on its own facts and the approach to be taken in the exercise of discretion will depend on all the circumstances.

ECHR

In determining this application, I have also considered whether the making of a return order would constitute a disproportionate interference with the Article 8 rights of those whose Article 8 rights are engaged. In this case, the father, mother and the children's rights are all engaged but it is trite law that in the event of a conflict, the children's rights prevail.

In considering the particular facts of this case, I am guided by the above legal principles.

Mother's case

The mother filed three statements in support of her applications that the children return to Poland. She says that the children were removed and are being retained without her consent; and that the Polish court is seised of the case and has jurisdiction to make all welfare decisions. She thinks the children's views have been heavily influenced by the father. As for the allegations of physical abuse, she accepts in her written evidence in this case that on one occasion during a heated argument she "lost it and hit A" but denies hitting I or E. She considers that the Polish court should determine all issues.

In respect of the Hague application, Mr Turner submits that the defences have not been established, save that he accepts A objects to a return, or if they have been, that the court should in any event exercise its discretion to return the children, given that the Polish court is seised and will carry out the welfare investigation, the available protective measures and given policy considerations. Mr Turner places weight on the following factors: the 'low level' of A's objections, the possibility that A will return if her siblings have to; the return not being to the maternal grandmother's home where the children had been particularly unhappy; language problems for the younger two children in their English school; the father's "shameful" actions; the Polish court being seised already; the English court not being able to deal with the future arrangements for the children and comity.

The mother submits there is no evidence of a grave risk of serious physical or psychological harm to any of the children if they are returned to Poland for the purposes of a welfare investigation.

The mother does not accept that the children would be separated, as she suggests that A would in fact return if the younger two did and submits that in addition close sibling groups are often separated by circumstances and she asserts that any ascertainable consequences would be tolerable in the particular circumstances. She adds that the harm from any separation needs to be balanced against the harm from the children being separated from their mother. However she accepts through Mr Turner that she cannot force A to return.

The mother accepts that A and I have reached the appropriate age and maturity to take into account their views but not that E has. The mother does not accept the younger two children object and contends that their views amount to simple preferences.

Father's case

The father has filed two statements. He opposes the mother's application, asserting that the children all object to returning to Poland and that ordering the children's return would place them in an intolerable situation and therefore expose them to a grave risk of harm.

Cafcass

Ms Huntington has prepared two reports, dated 24.04.20 and 01.09.20 and produced a more recent contact note dated 11.09.20 referencing a conversation with A. She spoke to the children on the first occasion by video call and on the second during a home visit.

In her first report Ms Huntington recorded the following:

Ms Huntington's opinion at this stage was as follows:

In her second report Ms Huntington recorded the following:

Ms Huntington's opinion was as follows:

In the recent note Ms Huntington records that:

Discussion

General

In this case there are three children. I have considered their situations separately. In particular, I have considered the defences in relation to each child separately, although all parties agree the position of one child may be relevant to a defence in relation to one or more of the other children.

I take into account that a return order is simply a mechanism to enable the Polish court to determine the future child arrangements on the basis of welfare considerations and that therefore this court is only looking, in effect, at the interim position.

Further, that the purpose of the Convention is to reinstate the status quo and to negate the effect of unilateral actions and deter abductions/wrongful retentions.

Objections

Having regard to the evidence and applying the law, I am satisfied that A objects to returning to Poland for the purposes of Article 13 and is expressing more than a preference or wish to remain in England. I accept Ms Huntington's opinion and analysis on this issue. I accept that A is mature for her age and so it is appropriate to take into account her views. I conclude that her objections are grounded in her unhappy experience of living with her mother in Poland and her happiness at living with her father in England and that they are strong, consistent, reasonable, objective, rational, her own and genuine. The mother accepts that A objects and Ms Huntington records that the mother said she would not force a return of A. In the circumstances of this case I am satisfied there is an inextricable link between a return to the care of her mother and a return to Poland.

I am not satisfied that I and E object to a return, although I accept that they do not wish to. I am satisfied I is mature enough for me to take into account her views, whereas E is not.

I accept the Guardian's opinion evidence that the children, whilst exposed to parental conflict, have not been negatively influenced or alienated from their mother by their father. The children, including A, were able to speak positively of their mother and freely articulated their sense of loss in relation to her absence from their lives. The children did not present with any of the behaviours typically associated with children who have been exposed to alienating behaviours.

I agree with the Guardian that given the close bond between these siblings and the support they have offered each other, they must be considered in the round as a group and therefore A's objection to a return impacts on I and E, as I am satisfied that there is a likelihood, given what she has said to Ms Huntington, that A would not return to Poland even if her siblings did.

Harm

Having regard to all the evidence before the court, including the children's statements and the mother's various admissions and the Guardian's analysis and opinion, I am satisfied that - making a reasoned and reasonable assumption as to the maximum level of risk to the children and considering the protective measures available to meet that risk - there is a high or grave risk, for these particular children in these particular circumstances, that returning them to Poland would expose them to physical or psychological harm or would otherwise place them in an intolerable situation for the purposes of Article 13(b).

The physical harm would be from physical ill-treatment or unacceptable chastisement by the mother. I accept that the children's allegations of consistent and ongoing physical punishment, taken as a whole, cross the threshold under Article 13b; the mother's behaviour towards them placing them in a situation which no child should have to tolerate. Whilst the greatest risk of physical harm is for A, there remains a risk to I and E. Moreover, A's siblings were and would be aware of her treatment by the mother and would have suffered psychological harm as a consequence. As would A, who was also aware of the treatment of her sister and brother. The abusive physical treatment of each child is also likely to have caused each of them psychological harm.

I am also satisfied, having regard to the totality of the evidence, that if the children return to Poland to their mother, it is reasonable to assume that her harmful treatment of them will continue. In so concluding, I also accept the Guardian's assessment of the mother's parenting vulnerabilities, lack of insight, empathy, understanding and minimization, which all remain unaddressed and so are significant and increase the risk of further harm to the children.

In addition, the children are a strongly bonded sibling group who have navigated instability and negative experiences together. I agree with the Guardian that their collective experiences will have created a buffer and resilience that assists them in coping and managing difficult periods.

I find that that the children will suffer a significant negative impact if the sibling relationship is fractured via a separation, which will place them in an intolerable situation. As already stated, I conclude that there is a likely risk of separation in the event of a return order because there is a likelihood that A will not return and the mother accepts she cannot be forced.

As for protective measures, the father says he is not in a position to return to Poland to work and/or care for the children because his work and home is in England. He says the option of the children staying with his own mother is very improbable. If the children are returned to the mother he seeks the usual undertakings, in particular that she does not use or threaten violence, does not emotionally abuse the children, does not leave the children with the maternal grandmother and does not engage with Social Services.

The mother accepts that there is no one else that the children could be placed with if they return to Poland. She no longer lives with her parents and now has a rented apartment. Neither parent wishes the children to be placed with strangers. Thus, the children would return to the mother. She agrees to give a range of undertakings to the court, as requested by the father.

I am satisfied that there are no protective measures that could in reality protect the children from the risks that I have identified.

I am told that A thinks that she will not feel protected by a referral to Social Services, given the poor response that she experienced previously. In addition, she has conveyed that she felt unable to share her experience of ill-treatment with such services in Poland, knowing that the mother would be made aware of them.

In any event, it is difficult for this court to assess the effectiveness of any protective measures in Poland, given the lack of evidence on this issue. There is no evidence before this court from such services in Poland as to what protective measures would be put in place.

I am satisfied that there are no protective measures capable of guarding against the detrimental impact of the separation of the siblings, both in the short term, owing to the emotional distress and harm that the children will suffer now and in the long term, for the reasons outlined by the Guardian.

I am not satisfied that protective measures can be put in place to ensure that the children do not face an intolerable situation. No measures can protect them against the emotional harm that would be caused to them from being separated. Given the facts of this case, it is difficult to see how the children could be protected from the psychological and emotional harm that would be caused by a move of two of them.

The reality in this case is that the children would be returned to an environment where they were at high risk of physical and psychological harm, which was the same environment that the children left in July 2019.

I agree with Ms Chokowry that any undertaking from the mother would not provide sufficient protection, given her lack of insight and denial.

I therefore conclude that the Article 13(b) defence is established.

Discretion

I turn to stage two and whether I should exercise my discretion to make a return order. I have considered a wide range of factors and weighed up the policy and welfare considerations in favour of a return against the circumstances of the exception and welfare considerations in support of a non-return. I am conscious that the children came here ostensibly on holiday and that prior to coming here there had been a degree of discussion between A and the father about the children staying, none of which the mother was party to. I also take into account that the mother was the children's main carer before July 2019.

Against these points I have also taken into account the following:

When I weigh all these considerations, I reach the clear conclusion that I should not exercise my discretion to return any of the children to Poland pursuant to the Hague application.

BIIa

Having decided against a summary return under the Hague application, I turn to the mother's parallel application under BIIa and the father's appeal against registration.

Law

I have considered carefully the provisions of BIIa, in particular the preamble at paragraphs 17 and 21 and Articles 16, 19, 20, 21, 22, 23, 24, 26, 27, 28, 31 and 33.

It is not disputed that the 2016 Polish order must be recognized in this jurisdiction, unless one or more of the limited grounds are made out and potentially can be enforced.

Mother's case

Mr Turner submits that even if this court refuses a return pursuant to the Hague, it can still and should order a return under the BIIa and must consider this option.

Mr Turner submits that there is no reason why the 2016 Polish order should not be enforced by the making of a return order and that the father's pleaded ground for non-recognition, namely public policy, is a very high hurdle to overcome, relying on Re D [2015] 1 FLR 1272 at paras 70 and 73, per Peter Jackson J, as he then was, relying on Re L [2013] Fam 94 , where Munby LJ described it as " a very narrow exception " which set " the bar very high ."

Mr Turner submits that the mother's BIIa application here is legitimately pursued and not to permit it would lead to further delay.

Mr Turner however accepts the children are entitled to join the father's appeal.

Father's case

Mr Setright submits that if I find the Hague defences established, I should not make a return order via the BIIa route.

In appealing the decision to register the 2016 Polish order, the father relies on Article 23(a) which states:

A judgment relating to parental responsibility shall not be recognized if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account he best interests of the child.

The father contends that to order the return of these children under the BIIa route, following a decision not to return them under the Hague route would be in effect perverse and contrary to public policy namely the effectiveness of the Convention.

Cafcass

Ms Chokowry on behalf of the children, invites the court not to enforce the order for the return of the children in circumstances where A has expressed strong objections, I and E do not wish to return, Article 13(b) has been established and it is detrimental to the children to be separated from each other. Ms Chokowry also indicated that she would wish to join the father's appeal against registration and appeal in the children's own right.

Discussion

I have reached the firm conclusion not to order a return of the children via this route at this stage. My reasons are as follows:

In reaching this decision, I take into account that I have not been made aware of any authority to support the contention that the court should enforce a return via BIIa, having at the same hearing first refused a return via the Hague.

Decision

In the above circumstances, I refuse to order the children's return to Poland. This decision has been made on the very particular and unusual facts of this case.

I give permission for this judgment, the parents' statements and the Cafcass reports to be disclosed to any Polish court or agency dealing with the children's welfare.

However, I encourage the parties to engage in mediation in this case rather than continue this litigation, which overall has been ongoing for some time.

An order will need to be drafted to reflect this decision and the necessary ancillary directions.

This is my judgment.