EUPillar Tower Hamlets London Borough Council v MK, SK, KK, WK, AK (Minors, by their Children’s Guardian, Toni Joly) [2012] EWHC 426 (Fam)

Summary

The care proceedings in England were in respect of two Polish children (aged 8 and 6). On 13th May 2010, the British Transport Police detected the children and two Polish men living in disused hut by a railway line in East London. The children were subject to care proceedings in Poland, and they appeared to be abducted. The local authority was involved. The British authority liaised with the Polish equivalent authorities. In January 2012, the care proceedings were transferred before the High Court. The English court assumed jurisdiction. In this context, Mr Justice Baker held: “40 [...]the removal of the girls from Poland was executed without the consent of all parties with parental responsibility and therefore wrongful under article 3 of the Hague Convention on the Civil Aspects of International Child Abduction and the girls remained habitually resident in Poland at all material times up to and including the time the English court was “seised” when the application for care orders was lodged. Accordingly, under article 8 of Brussels II Revised, the Polish court retained jurisdiction in respect of matters of parental responsibility. 41 It is, however, a striking feature of the history of this case that the Polish authorities have neither sought the return of the children nor intervened in the English proceedings in any way. On the contrary, they have positively refrained from doing so in full knowledge of the circumstances. The children have now been in this country for twenty-one months. No one is seeking their return to Poland. I find that they have acquired a considerable degree of social integration and are now habitually resident in this country. In the circumstances, I conclude that this court has acquired jurisdiction under article 10(a) of Brussels II Revised as a result of the fact that all persons having rights of custody (including the mother and the Polish authorities) have acquiesced in the removal or retention of the children to or in this country. In the alternative, I find that all the requirements of article 10(b)(i) are satisfied, because (1) the mother has known about the children's whereabouts since May 2010; (2) the Polish authorities have known about the children's whereabouts since at least July 2010; (3) the girls have therefore resided in this country for over a year since the Polish authorities were informed about their whereabouts; (4) W and A are now settled in their new environment, and (5) no request for the return of the girls has been lodged either with the Central Authority of England and Wales or with this Court.” [40-41].