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The father was a Polish national and the mother a British national. They had a child together in England in 2015 and moved to Poland 3 months later. They had a second child in Poland in 2019. 

Both children are dual Polish-British nationals. The children were habitually resident in Poland prior to their travelling to England in July 2024.

The family travelled to England for a holiday on 19th July 2024. It was planned that the mother and children would stay for one month and that the father would return to Poland after 10 days. After the father returned to Poland, the mother decided to remain in England. She informed the father of her decision on 19th August 2024.

The mother alleged domestic abuse by the father. The father denied the allegations. 

The father made an application for the return of the children under the 1980 Convention. The first instance judge ordered their return to Poland. 

The mother made an application to set aside the return order on the basis of a fundamental change of circumstances due to a deterioration in her mental health and her position that she will no longer return to Poland. The father made an application to enforce the order.

There had been a fundamental change of circumstances as the mother was no longer willing to return to Poland. The judge set aside the initial ruling and refused the application for return based on the Article 13(1)(b) exception.

Grave Risk - Art. 13(1)(b)

If the mother refused to return to Poland with the children they could not stay with the father before a risk assessment was undertaken but he Polish authorities to ensure that this was safe. Therefore the children would be returned to Polish social services. The judge held that this would amount to a grave risk of harm within the Article 13(1)(b) exception.

Procedural Matters

The judge held that the decline in the mother’s mental health after the original judgment did not amount to a fundamental change of circumstances which undermines the basis on which the original order was made. 

The judge was satisfied of the likelihood that the mother was a victim of domestic abuse and that she would not return to Poland. This amounted to a fundamental change of circumstances. The judge stressed that the bar is set high is due to the fact that otherwise a refusal of a summary return based on an assertion by an abducting parent that they would not accompany a young child on return could open the floodgates for such claims and undermine the entire purpose of the Convention.