MacDonald J.

Summary

This matter concerned a successful appeal against the decision of the Maintenance Enforcement Business Centre (MEBC) to register a Polish interim maintenance order obtained by the respondent from the District Court in Jelenia Gora on 15 December 2022.

The appellant sought to demonstrate that the registration by the MEBC of the Polish interim maintenance order was incompatible with public policy for the purposes of Art 22(a) of 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (hereafter ‘the 2007 Hague Convention’) in circumstances where the effect of reciprocal enforcement of that order would be to finance and entrench the continuing unlawful retention of the children in the jurisdiction of Poland, resulting from a failure by Poland to meet its obligations under BIIa.

MacDonald J was satisfied the appeal should be allowed where, whilst one of the bases for recognition set out in Art 20 of the 2007 Hague Convention was met, so was one of the grounds for refusing recognition as set out in Art 22. Further, in this case, it would not be appropriate to exercise the discretion conferred by Art 22 in favour of recognition.

Background

The respondent was born in Poland in 1978. The appellant was born in England in 1981. They married in Poland on 23 August 2008 and thereafter lived in England. The parties are the parents of two children, aged 15 and 12. The parties subsequently separated in April 2014.

After their separation, the parties were engaged in extensive litigation.

Private law children proceedings

The circumstances of the private law children proceedings are relevant. The respondent made an application for permission to remove the children permanently to the jurisdiction of Poland. His Honour Judge Willans delivered judgment on 15 August 2018 refusing the respondent’s application and issuing a specific issue order that the respondent was to return to England and Wales at the conclusion of any holiday.

In April 2021, the respondent removed the children to Poland without notice to the appellant and informed the appellant she would not be returning to England. The children have remained in the jurisdiction of Poland since that date.

The appellant commenced proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction for the return of the children, which was transmitted to the Central Authority in Poland on 19 April 2021. The appellant informed the Child Maintenance Service (CMS) that the children had been taken to Poland and was advised by CMS to suspend payments to the respondent.

On 22 April 2021, the appellant also issued proceedings in the jurisdiction of England and Wales for the return of the children. The private law children proceedings were stayed pending the outcome of the proceedings in Poland under the 1980 Hague Convention.

In July 2021, after the first hearing in the 1980 Hague Convention proceedings in Poland, the children were ordered to be returned to the jurisdiction of England and Wales. The respondent absconded with the children. A month later, the position was reversed by the Regional Prosecutor and the Polish appeal court, who allowed the respondent’s appeal and dismissed the application for the return of the children.

The appellant then applied without notice to the District Court in Poland to enforce the specific issue order of HHJ Willans under Art 42 of BIIa, as was then in force between the competing jurisdictions. The application for enforcement was granted, requiring the children to be returned. The respondent was alerted to the making of this order and went into hiding.

In June 2022, the respondent successfully applied to the District Court for the non-recognition of the English specific issue order. The appellant unsuccessfully appealed.

The Vice Consul of the Polish Embassy wrote to the family court of England and Wales expressing concern that the appellant was continuing to litigate in Poland and sought confirmation that the ‘English courts accept the judgment made by the Polish Court of Appeal under the 1980 Hague Convention’, and sought the making of an order under s 91(14) Children Act 1989.

The European Commission launched infringement proceedings against Poland asserting a failure in abduction cases to fulfil its obligations under BIIa which are ongoing.

Financial remedy

The respondent had also pursued proceedings for financial relief, including within the Polish courts for child maintenance. A final order in the jurisdiction of England and Wales was made on 26 April 2017, including for nominal periodical payments. The appellant contended the arrangements were informed by the dismissal of the respondent’s application to remove the children permanently to Poland.

On 27 December 2021, the respondent issued proceedings in the District Court of Poland for child maintenance. An interim order was made that the appellant pay PLN 1500 per month per child. The appellant submitted to the District Court in Poland that the Polish court lacked jurisdiction in respect of child maintenance, which was accepted. On 21 September 2022, the interim child maintenance order was set aside and the respondent’s application dismissed for want of jurisdiction, as it was held that the children were domiciled in ‘the territory of the United Kingdom’.

The Polish Public Prosecutor appealed to the Regional Court against the dismissal, submitting the District Court had erred in finding the children were not domiciled in Poland, stating the ‘concept of “habitual residence of the child” … is a concept which refers to the factual situation of the child, irrespective of its legal regulation by administrative decisions or court judgments’. The appellant contended the children were domiciled in the United Kingdom and Poland was bound by the decision of HHJ Willans in the family court sitting at Barnet.

In November 2022, the District Court suspended the substantive Polish maintenance proceedings pending the non-recognition of the specific issue order within the private law children proceedings. However, in December 2022, the respondent successfully applied to the Regional Court for interim child maintenance. On 15 December 2022, a without notice interim child maintenance order in favour of the respondent for PLN 1500 per child per month was granted. It is this order which is the subject of the appeal.

On 19 December 2022, a copy of the interim maintenance order was served on the District Prosecutor by the Polish court, accompanied by a document entitled ‘Service of a copy of the decision’, which included the instruction that the decision was not appealable. When the order was served on the appellant, it did not include the instruction. The appellant sought written reasons for the decision, which was denied.

The Polish authorities filed a Statement of Proper Notice for the purposes of Art 25(1)(c) of the 2007 Hague Convention in January 2023. The box labelled ‘The respondent had proper notice of the proceedings and an opportunity to be heard’ was left unchecked. By contrast, the box on the document served on the District Prosecutor was checked. The appellant asserted he had no opportunity to challenge or appeal the interim maintenance order.

The Polish interim maintenance order was registered by the MEBC on 19 May 2023. The appellant indicated he disputed the reciprocal enforcement of maintenance. On 25 May 2023, the District Court in Poland reinstated the suspended maintenance proceedings. The District Court ordered the respondent to pay PLN 2000 per month per child and dismissed the remainder of the respondent’s claim.

The District Court in Poland held that, where (a) the respondent’s maintenance application was issued on 27 December 2021 – after the end of the transitional period of the withdrawal of the United Kingdom from the European Union – the jurisdictional rules in BIIa were not applicable, (b) the 2007 Hague Convention contained no rules of jurisdiction, and (c) the Polish court had to look to domestic law to determine the question of jurisdiction, the Polish court had jurisdiction based on the habitual residence of the children in Poland (the creditors).

Discussion

In respect of Art 21 of the 2007 Hague Convention, the court found in this case that only Art 20(1)(c) required examination in relation to the bases of recognition under Art 21 with respect to the interim maintenance order made on 15 December 2022. The test in Art 20(1)(c) as to whether the creditor is habitually resident in the state of origin is the date the maintenance proceedings were instituted, which in this case was 27 December 2021. The court held that the assessment as to the question of habitual residence under the 2007 Hague Convention should be done on a case-by-case basis to determine whether there is a sufficient connection between the individual concerned and the State of origin. The court was satisfied there should be a broad interpretation of the term ‘creditor’ per Art 20(1)(c), and that accordingly Art 20(1)(c) would be satisfied if either the mother or the children as creditors were habitually resident in Poland at the time maintenance proceedings were instituted.

The court did not support a conclusion that the children had a sufficient connection with Poland to be habitually resident. Not only had the District Court held on 21 September 2022 that the children were resident in the jurisdiction of England and Wales, the instability of the children’s life in Poland since their wrongful removal to Poland was not such as to establish a sufficient connection for the purposes of Art 20(1)(c). However, the court did support the respondent having sufficient connection.

In respect of Art 22, the court was satisfied that the ground for non-recognition under Art 22(e) was made out and should have led to a refusal to register the interim maintenance order made by the Polish court on 15 December 2022.

Specifically, the court drew attention to the Explanatory Report for the 2007 Hague Convention, and Art 22(e), which makes clear that a defendant be given ‘proper notice’ in Art 22(e) which provides an opportunity to react, but that it is not necessary for a defendant to have been duly served with the maintenance proceedings. It was clear in this case, the appellant was not given any notice of the hearing on 15 December 2022, nor was the decision subject to appeal.

Finally, the terms of Art 22 of the 2007 Hague Convention make clear the court retains a discretion to recognise an order despite a ground for non-recognition under Art 22 being made out. The court held it would not be appropriate to exercise such discretion in circumstances where the due process under Art 22(e) is manifestly satisfied.

The appellant relied on several additional grounds for non-recognition under Art 22 of the 2007 Hague Convention, which the court was not satisfied were made out.

Conclusion

Appeal allowed.