Summary
The proceedings were concerned with two children who were aged 13 and 11.
The parties’ marriage was dissolved on 26th April 2002.
This was an application by a father seeking the children’s return to Poland.
Before the children came to England, they had been habitually residing in Poland. There were a number of previous Polish proceedings in relation to the children, with respective orders dated 1 Feb 2005, 15 Dec 2006 and 24 October 2007.
The question was whether the children were to be returned to Poland. Sir Mark Potter dismissed the father’s application, and held:
“76. I return to the first, and by far the weightiest, welfare consideration. It is plain that the period since the children's removal has been a critical 14 months in their lives and their development for the reasons summarised by me at paragraph 73 above. They are now old enough to have formed their own firm views and have valid reasons for their objections to return to Poland quite independently of their mother's views. It appears that their very considerable psychological and educational difficulties in Poland have been happily resolved by their move to England, and the period over which their objections to return have developed and hardened are in large measure the product of the father's unexplained delay in pursuing his Convention remedy. In those circumstances, in the exercise of the discretion afforded to me under Article 13 , I decline to make an order for the return of the children to Poland.
77 In reaching this decision, I have not lost sight of the provisions of Article 11 of Brussels 2 Revised and the fact that, were it not for the children's objections, the Polish court would plainly be the appropriate forum in which to decide the future of the children so far as their father's rights of access are concerned. The order I propose to make, is in no way a reflection upon the careful attention given to this case by the Polish Court. However, as I have made clear, my decision is based upon my conclusion that for these intelligent children, whose views must carry increasing weight with their increasing age, matters have significantly changed for the better since the matter was last before the Polish court and there are strong welfare grounds not to order their return. To make such an order would be to uproot, contrary to their wishes and objections, from a situation of happiness, security and educational progress over the last 14 months and to return them to a place and general situation where it is clear that they felt unhappy, emotionally disturbed and unable properly to relate to their peers. That being so, I propose to order dismissal of the father's originating summons.” [76-77]