Amy Trevellick of GoodLaw’s family team discusses a recent Court of Appeal success

Amy Trevellick of GoodLaw’s Hove office successfully appeals the decision in GM v KZ (No 2) [2018] EWFC 6  overturning the order of Mostyn J requiring the Mother to return the children to England and Wales from Poland.

The decision brings about a conclusion to protracted litigation, both in England and in Poland, which has sustained for over 2 years. Moylan LJ, Hamblen LJ and Jackson LJ sitting at the Court of Appeal, unanimously disagreed with Mostyn J’s decision that the Polish courts were not properly seised of the matter when the first application concerning the children was lodged there by the mother on 2nd June 2016. It therefore followed that, pursuant to Article 19 BIIa, the court in England must stay its proceedings, commenced by the father on 4th July 2016, in favour of the Polish court’s proceedings which had been finally determined in June 2017.

Moreover, the Appellate Court found that the comments made by Mostyn J in his earlier judgment that the children had “obviously” been habitually resident in England on both 2nd June and 4th July 2016 could not be characterised as observational or incidental, and in fact directly criticised the approach of the Polish court which has made an opposite finding in August 2016 and had later upheld that finding on the father’s appeal in Poland in June 2017. Such critique amounted to a review of the Polish judgments and was therefore impermissible under Articles 24 and 26 BIIa.

Finally, it was also noted that even if the English court were to have jurisdiction over these children, there was not enough evidence available to the court to make a determination as to their best interests and whether those were best served in ordering them to be summarily returned to England and Wales. As such, a return order should not have been made without a further welfare assessment having been carried out.

The return order was therefore discharged and the proceedings brought by the father in England and Wales dismissed in their entirety. The full judgment can be read here: http://www.bailii.org/ew/cases/EWCA/Civ/2018/1637.html

For more information, contact Amy Trevellick on 01273 956270 or atrevellick@goodlawsolicitors.co.uk.