Case
RE S (Brussels II Revised: Enforcement of Contact Order)
Citation
[2008] 2 FLR 1358
Date
27.07.2007
Comment
The Court refused to enforce a Polish contact order although the recognition of the order in England stood. The judge decided that it was wrong in principle to go behind a properly sealed and acted upon Polish Certificate. However, the Polish order reflected an order by consent in circumstances in which no genuine consent had been given. Consequently, as the child was now habitually resident in England the provisions of BIIR operated and any application to vary or discharge the provision of the order were to take place in England. The court made the child a ward of court and ordered visiting contact to the father finding that the child’s change in circumstances and the absence of any real consent to the existing order meant that the provisions for contact required more careful consideration.
Further Information
This case concerned a Polish family. Following the parents’ separation the child resided with the mother. The Polish court ordered staying contact every other weekend with provision for alternate festival holidays and extended periods over the school holidays.
After one contact visit, the mother moved to England with her new husband taking the child with her. She had not informed the father. His consent was not required as he did not have parental responsibility. The mother did not permit further contact with the father and the Polish court fined the mother for the breach of the contact order. However, the Polish court declined the father’s application for parental responsibility and also the mother’s application for leave for the child to remain in the UK. The court considered that the child was now habitually resident in England.
The father applied to the English court, seeking recognition and enforcement of the Polish contact order. The mother opposed all contact challenging the certificate issued by the Polish court, arguing that the child had not been given the opportunity to be seen by the Polish Court (as recorded on the certificate).
The English court recognised the Polish order but dismissed the father’s application for enforcement and instead made the child a ward of court and ordering periods of contact to take place. The Polish order had reflected an order by consent but no genuine consent to the terms of the order; the mother was deeply hostile to the father and it would have been inappropriate to regard the order as a template for contact without adopting a very much more careful approach particularly in light of the change of circumstances for the child.
Barristers involved