AJ v FJ (Appeal Against Registration) [2024] EWFC 356

We acted on behalf of the appellant in the first successful appeal against the registration of a child maintenance order under The Hague Child Support Convention 2007.

Background

AJ v FJ [2024] EWFC 356 concerned an appeal made by an English father (represented by Vardags) against a decision of the Maintenance Enforcement Business Centre (MEBC) to register a Polish interim maintenance order.

*The Reciprocal Enforcement of Maintenance Orders is an international agreement between different countries to enforce each other’s child maintenance orders. In the UK, maintenance orders made against parents in other REMO countries, or orders made by courts in other REMO countries, are registered by the MEBC. See the list of REMO reciprocating countries here.

The father was born in England, and the mother was born in Poland. The couple married in 2008 and lived in England, where the mother lived and worked for over 16 years. During the marriage, the parents had two children, both born and raised in England. Upon the parents’ separation in 2014, there was a series of protracted and contested litigation between them, including not only the maintenance proceedings considered in this judgment, but extended proceedings in regard to the shared care of their children.

The mother had made two failed applications to the English court seeking permission to permanently remove the children to her native Poland. A child arrangements order provided for a shared lives with arrangement between both parties, and a specific issue order was made which required the mother to return the children to England and Wales at the conclusion of any holiday or overseas visit spent outside England and Wales, together with given the father advance notice of any travel outside of England and Wales.

In April 2021, the mother abducted (wrongfully removed) the children to Poland, in breach of the Order, and without giving notice to the father. She subsequently informed him that she and the children would not be returning to England.

Following the children’s wrongful removal to Poland and since then, the father sought their return under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

Notably, the case has been included in infringement proceedings brought by the European Commission against Poland, alleging that Poland has failed to meet its obligations under Council Regulation (EC) 2201/2003 (the Brussels II Regulation), namely its obligation to return abducted children to other EU member states.

Proceedings in Poland

Following the commencement of the 1980 Hague Convention proceedings in Poland, the Polish court ordered the children to be returned to England and Wales under Article 12 of the Convention. The mother subsequently absconded with the children, in breach of the order. She also cut off all contact between the children and their father, blocking all face-to-face and video contact, including refusing gifts and cards the father had sent the children.

The Regional Prosecutor appealed the return order, and the mother too filed her own appeal. The Polish Court of Appeal allowed the mother’s appeal and dismissed the application for the children’s return. Following this result, the Polish Deputy Justice Minister publicly thanked then-Justice Minister, Zbigniew Ziobro, on social media, on X (formerly Twitter) in regard to the decision:

“Two children who were to be released to the UK will remain in Poland. This was the decision of SA Warsaw, changing the ruling of the first instance. I thank the judges and especially the prosecutors. Thank you [Zbigniew Ziobro] The children sang back by phone: thank you. They remain.”

The mother then sought an order from the Polish court to terminate the father’s parental responsibility. This was made without notice to the father.

The father applied to the District Court in Poland to enforce the English child arrangements order under Article 42 of the Brussels II Regulation, which remains in force (the order being made prior to the end of the transitional period following the UK’s withdrawal from the EU). The District Court granted the application, requiring the children to be returned to England and Wales. Although the order was made without notice to the mother, she was alerted to the order and withdrew the children from school and went into hiding with them. The mother then applied to the District Court for non-recognition of the amended English order.

A month later, the Polish Public Prosecutor wrote to the District Court supporting the mother’s application, and then announced that he would not investigate the location of the children. The Polish Child Ombudsman also supported the mother’s application. An interim order granting the mother’s application for non-recognition was granted.

In addition to the proceedings concerning the children, the mother also applied to the Polish court for child maintenance, the registration of which formed the subject of the father’s appeal in the UK.

Appeal in the UK High Court

The father appealed the mother’s registration for reciprocal enforcement on the grounds that none of the bases for recognition and enforcement under Article 20 of the 2007 Hague Convention were met, and that the case warranted a refusal of recognition as per Article 22.

The mother’s initiating documents and application warranted scrutiny in this appeal because they contained so much inaccuracy.

The appeal also relied upon the grounds of public policy, given the European Commission’s proceedings against Poland. More specifically, it was argued that recognition of the Polish court’s order would be manifestly incompatible with the UK’s public policy as it would:

1. Finance and entrench the unlawful retention of the children, contravening the UK’s public policy of maintaining the rule of law.
2. Cause harm to the children, which is also against UK public policy.

The public policy argument was rejected by the court due to insufficient evidence that registering the order was likely to cause harm to the children, and on the basis that a finding of incompatibility with the UK’s public policy of maintaining the rule of law required sufficient evidence of political interference, of which there was not.

However, the father’s appeal was upheld on the basis that he had not been provided sufficient notice of the Polish proceedings, a ground for refusal under Article 22. Indeed, the father had not been provided any notice by the mother or her Polish legal team of the application or hearing which resulted in the maintenance order, but there was no opportunity for the father to challenge it or set it aside, or even know the reasons for it. When his Polish lawyers had applied to the Polish District Court for written reasons for granting the maintenance order, their request was rejected on the basis that the order was not appealable.

Indeed, the mother had entirely severed the children’s relationship with the father to such an extent that even Polish child protection officials have referred to the children as being ‘alienated’ from the father on account of the mother’s conduct.