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“Wrongful child abduction” proceedings gone wrong
The case of Moga v Poland was heard in the ECtHR on 22nd February 2022, with the Judgment being published in mid-March 2022. The case concerned an alleged lack of swift examination by the domestic court of “wrongful child abduction” proceedings under the Hague Convention. The states involved in the circumstances of the case were England and Poland.
Background
The parties had 2 children who were both born in Poland and had dual Polish and Hungarian nationality. For a while, the family lived in the UK, and before 2016, the children travelled between Poland, Hungary and the UK, living on and off in Poland and the UK with either their mother alone, or both parents.
From 2014 onwards, it is evident from the chronology of interventions that the relationship had certainly begun to sour, with there being allegations that the Father had perpetrated domestic abuse, and the Mother seeking assistance from domestic abuse professionals in Poland and in the UK.
In June 2016, the Mother and children went to live in Poland, however the Father’s case was that he had never consented to them settling there. Several days after, he removed the children from Poland without the Mother’s consent, took them initially to Hungary, and then to the UK. On 6th July 2016, the Father was stopped by police in the UK and the children were examined by a Social Worker. They then remained in the UK until they were collected by their Mother on 29th July 2016, when they moved again to Poland and where they have remained since.
Proceedings
From July 2016, there were concurrent proceedings in both Poland and in the UK. The Polish court considered that the family’s life was in the UK, and the stay in Poland had been temporary. In August, that decision was quashed when the court issued an interim measure ruling that the children’s sole residence was with their Mother.
Meanwhile, in the UK, on 18th July 2016, an order was made prohibiting either parent removing them from the jurisdiction of England and Wales except where necessary to travel to Poland. In November 2017, declarations were made that the children had their habitual residence in England and that the children should return by no later that December 2017. By January 2018, the Mother had not returned them, and the Family Court in London reiterated its earlier order. However, in July 2018, the children had been living in Poland for 18 months, and the RCJ set aside the earlier order on the basis that the English courts had lost jurisdiction over the case.
“Wrongful Abduction” under the Hague Convention
Alongside both domestic sets of proceedings, an application was lodged for a return order to the UK under the Hague Convention, however the Mother’s case was that Poland was the centre of the children’s lives, and therefore the removal of them from the UK could not amount to a “wrongful abduction” for the purposes of the Hague Convention.
The court agreed with the Mother’s position on that, holding that the children had not been wrongfully removed or retained within the meaning of Art. 3, as Poland was their habitual residence. The court also had regard to harm that could befall the children if they returned to the UK as a result of their father’s violence or abuse of their mother, and on that basis refused to have the children returned to the Father, in accordance with Art. 13(b), finding that there was indeed a grave risk that the children’s return to the UK would expose them to psychological harm, or an intolerable situation.
European Court of Human Rights
We now turn to the case before the ECtHR which was essentially, in breach of Art.8 and Art 14 of the ECHR, and Art.5 of Protocol No.7 to the ECHR, that the Polish court had not ordered the return of his children to him and had sanctioned their alienation from him by not deciding the Hague convention application in a speedy manner (the domestic court in Poland took 8 months for the court to consider and ultimately dismiss the Father’s claims).
The role of the ECtHR is of course not to rule on the merits of the Father’s case that the children should have been returned to him, but in deciding his claims, the ECtHR did acknowledge that the period of 8 months for the proceedings to conclude grossly exceeds the 6-week time-limit prescribed by Art 11 of the Hague Convention and Art. 11 of the EU Regulation on Recognition of Judgments. The Polish court was therefore “not in compliance with the positive obligation to act expeditiously in proceedings for the return of the children” [68].
Despite the win for the Father in achieving both compensation and a declaration that the Polish court had violated Art. 8 of the ECHR, the ECtHR were quick to reinforce their observation for the Father’s benefit that “as the children have lived for many years with their mother in Poland, the present judgment should not be interpreted as suggesting that the respondent State should take steps to order their return to the United Kingdom”.
Analysis
This case reiterates the importance of expeditiously dealing with matters under the Hague Convention, even in circumstances where there are, as in this case, sets of proceedings in both jurisdictions involved, numerous court hearings, and incompatible court orders in each state concerned. Delay simply cannot be afforded (and certainly not a delay of 6 months) where courts are concerned with proceedings under the Hague Convention.
