Summary
The wife and her daughter, W, left Poland and came to England where some of the parties’ elder children had settled.
The wife commenced divorce proceedings in Poland on 24th November 2009.
Some months later, on 15th June 2010, the father made an application with the Polish Central Authority, seeking a summary return of the child to Poland.
The mother raised the defence of acquiescence along with the defence of a risk of harm and the child’s objections.
In October 2010, Mr Justice Peter Jackson refused the father’s application.
However, the father’s appeal was allowed by the Court of Appeal. Lord Justice Thorpe held:
“There is no doubt at all in my mind that Jackson J reached the wrong conclusion. He should not have refused the return order. Rather, he should have ordered the return of the child for this was the plainest case of abduction. The father's only vulnerability was his delay between understanding the extent of the mother's removal and activating the Hague remedy.” [7]
He further made the following observation:
“35 In the court below the judge decided the issue in favour of the unrepresented defendant. However in this court the appellant has the advantage of a specialist solicitor, who has been approved for inclusion on the Central Authorities panel, he has a specialist junior in Mr Khan and he has a specialist leader in Mr Scott-Manderson. Against that array of highly skilled expertise the mother has no guide, only a any skilful and sympathetic interpreter. She made her submission to us with great dignity and with brevity. It may well be that even if she had had Mr Scott-Manderson to put her case he would not have been able to say any more than she said for herself. However those who take these difficult decisions as to how public money should be spent in family law cases should ask themselves whether they have got the balance right in giving so much to the left behind parent, without any investigation of means or merit, and in withdrawing public funding for the defendant, on the ground that she may have an interest in a property in another jurisdiction, that may have value but which could not possibly be utilised to provide immediate funding for urgent litigation.
36 So we have looked into this case with great care, we have spent much longer in our investigation than would otherwise have been necessary had the respondent to the appeal been represented. As is so often the case, what is intended to be an economy turns out to be an extravagance. It would have been a much better use of public money had both parties been represented below and it may well be that in those circumstances an appeal would have been avoided.” [35-36].