This post was written by Gilles Cuniberti and Anna Wysocka-Bar.
On 26 January 2023, the European Commission has launched an infringement procedure against Poland for violation of the Brussels II bis Regulation.
The EAPIL Blog has learnt about the details of one of the cases which has triggered this procedure. It is described below.
The case is concerned with a girl born in 2013 from a British father residing in England, and a Polish mother. The child has been living with her mother in Poland since 2017.
First English Return Order
In 2017, an English family court issued an order of return of the child to England and Wales.
The English court found that the child was habitually resident in England in 2017, and that her removal to Poland was wrongful.
Polish Dismissal of Return Order
The father applied in Poland for a return order based on the 1980 Hague Convention.
The application was allowed in first instance, but dismissed by a Polish regional court in June 2018, on the ground that there was a defence under Article 13(b) of the Hague Convention.
Although the EAPIL Blog could not read this decision, it seems that the mother of the child was blaming the father of a child for being aggressive towards her and seeking revenge instead of being truly interested in the happiness and wellbeing of the child. The religion of the father of the child was also discussed, as the mother suggested that he hates Catholics. The mother alleged that she was also afraid that the father might discriminate against the child only because she is a girl. The mother also alleged that the father of the child has a family and a wife in another country. With respect to the child, the mother also alleged that she is surrounded by love in Poland, is in a very close relationship with her grandparents and is perfectly adapted in the society. The mother argued that the child never misses her father and never asks about him. Hence, the mother concluded, the return to the father to the UK would have a devastating effect on the child.
Second English Return Order
Later in 2018, the Polish mother then wrote an email to the English court that she would not bring the child back to England notwithstanding the 2017 return order.
The father then applied to the English family court for a return order of the child to England and Wales into the care of her father in accordance with Article 11(8) of the Brussels II bis Regulation.
The court noted that the mother had failed to abide to the 2017 return order, and had written to the court that she would not.
The court ruled that given the age and immaturity of the child, it was inappropriate to hear her.
The court then ruled that it was satisfied that the mother was properly served, by email, by post by the Polish lawyer of the father, and by the Polish court itself, in accordance with the EU Service Regulation.
The court noted that the mother worked as an English interpreter and as a English teacher in Poland, and thus did not need an interpreter in the English proceedings, that she had not required in any case.
Finally, the court noted that the mother was offered the possibility to be heard and participate in the English proceedings by telephone.
The return order was issued in October 2018 and was supplemented with a certificate on the form provided in the Annex IV of Brussels II bis Regulation.
Non-Recognition of the English Return Order in Poland
In February 2019, pursuant to Article 42 of the Brussels II bis Regulation, the Polish local court obtained, through the Polish Ministry of Justice, the application from the father for the enforcement of the English child return order.
Then, the local court in March 2020 refused the enforcement basing its decision on (interestingly) Article 23 of the Brussels I bis Regulation. Later, the court of the second instance, to which the father of the child filed an appeal, upheld the decision on non-enforcement of the English return order. The reasons provided by both courts are numerous and might be categorized as follows.
First, the court explained that the mother of the child has not participated in the UK proceeding and was not duly informed about it. Even though, the UK court asked Poland for the correspondence to be served on the mother through legal aid procedure, the documents were not duly served. The documents were served to the mother’s attorney-at-law, whose power of attorney was already revoked on the date of service. Even if theoretically – the lawyer would have a mandate to receive a correspondence addressed to the mother of the child, the time between the service and the issuance of the UK return order was too short to prepare for the defense. Consequently, neither the mother, nor the child were heard during the UK proceeding.
Secondly, the principle of the best interest of the child was raised. The court explained that the child had no contact with the father since 2017. The child lives in Poland with the mother, takes violin lessons and horseback riding classes in Poland, started primary education in Poland, has family and friends in Poland. The child should not be abruptly taken from such environment. The child is now rooted in Poland and has the center of life interests in Poland.
Thirdly, other, not explained in detail, arguments were raised. The court underlined that the ongoing pandemic should also be considered, however without stating what is exactly the influence of the pandemic on its decision. The court submitted that the English return order does not indicate the deadline by which the child should be returned to the UK. Also, the fact of Brexit was contemplated. The court stated that it is not sure whether English courts are still correctly applying the Brussels II bis Regulation after the Brexit referendum, and any doubts to that respect should be interpreted to the benefit of the citizens of the EU Member States (presumably, the mother of the child in this case).
It seems that the problematic stage of the proceedings is what happened in Poland after the English return order delivered in accordance with Article 11(8) of the Brussels II bis Regulation and supplemented with the certificate from Annex IV of the Brussels II bis Regulation was transferred to the local court in Poland in order to be enforced.
As explained by the Court of Justice of the EU in Inga Rinau (C-195/08 PPU), the enforceability of a judgment requiring the return of a child following a judgment of non‑return enjoys procedural autonomy. It means that once the certificate has been issued, the judgment requiring the return of a child referred to in Article 40(1)(b) is to be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition (see: para. 68, Inga Rinau). Hence, opposition to the recognition of the decision ordering return is not permitted and it is for the requested court only to declare the enforceability of the certified decision and to allow the immediate return of the child (see: para. 89, Inga Rinau).
In this case, the Polish courts of two instances were analyzing the procedure before English court, the current situation of the child, the influence of the pandemic and Brexit to conclude that the English return order should not be enforced. No such review is admissible under the Brussels II bis Regulation.
We cannot help but pick up the argument that English courts might have lost their competence in EU law after Brexit. Are Polish judges fully aware that the EU was not established in 2004, and that, at that time, English courts had already been applying EU law for almost 20 years?
It might be easier to understand how the factual background of the case fits into the provisions of Brussels II bis Regulation making use of the schema included in the EU Practice Guide for the Application of Brussels II bis Regulation below.