Cross-border child abduction from the UK: comparative analysis of Polish and Lithuanian court cases

Abstract

This article provides a comprehensive analysis of court cases related to parental child abduction addressed by Polish and Lithuanian courts, with a particular focus on those involving the UK. It aims to shed light on the legal complexities and challenges inherent in resolving such cases, particularly in relation to the interpretation and application of the 1980 Hague Convention on International Child Abduction in national legal systems. For this purpose, the article analyses court judgements rendered by Polish and Lithuanian courts over a 5-year period, from 2019 to 2023. By doing so, it seeks to uncover recurring patterns and trends in judicial decision-making processes and highlight any noticeable discrepancies and inconsistencies in legal proceedings. The article not only contributes to the academic discourse in this field but also offers practical insights for legal professionals dealing with cross-border child abduction cases.

I. Introduction

On 1 May 2004, with the ‘big bang’ EU enlargement, Lithuania and Poland acceded to the European Union (EU). In addition to many other advantages, this accession allowed for greater freedom of movement for Lithuanians and Poles within the EU, contributing to the migration patterns that include the UK as one of the most popular destinations.¹ This situation has resulted in the formation of many cross-border families. Some of these families were formed by the same Poles or Lithuanians resident in the UK; some were made up of partners from different nationalities who had established their homes in the UK.

However, love is anything but simple, and families sometimes fall apart. When the relationship in a cross-border couple deteriorates, one partner is often tempted to leave, moving back to their home country or to another State, leaving the failed relationship behind.² This trend can also observed among Poles and Lithuanians who moved to the UK after their countries became EU Member States. When their couples broke up, many returned to their homeland, often taking their children with them, which in some cases was against the wishes of the partner who remained in the UK.

Parental child abductions, where a parent unlawfully (without the consent of the other parent or a court) removes or retains a child in another country, are a common negative phenomenon in Europe.³  This phenomenon has been studied from various perspectives, ranging from sociological, psychological, and legal⁴ to international diplomacy perspective.⁵ The legal framework for addressing child abduction cases is primarily provided by the 1980 Hague Child Abduction Convention and, in the EU, is supplemented by the Brussels IIb Regulation.⁶ The 1980 Hague Convention, as noted by P. R Beaumont and P. E. Mceleavy,⁷ has proved to be one of the most widely ratified treaties ever agreed at the Hague Conference on Private International Law, and the UK, Poland, and Lithuania are parties to this treaty. The Convention has set as its aims to protect children from the harmful effects of international abduction by a parent or guardian and seeks to ensure the prompt return of abducted children to their country of habitual residence.

However, the implementation of the 1980 Hague Convention can be complex, involving intricate legal processes that require careful consideration. The Convention faces challenges such as varying approaches and judicial practices among member states,⁸ and, as put by M. Freeman and N. Tylor, the emerging need to ‘nurture the Convention so that it is able to continue in contemporary society to fulfil its desire to protect children internationally from the harmful effects of abduction’.⁹ To help the national courts with the interpretation of the Convention, several official Guides to Good Practice to the Hague Convention¹⁰ were adopted by the Hague Conference on Private International Law and academic discussions on how to adjust the interpretation of the Convention to changes in society and abduction patterns continue.¹¹

This article focuses on the Polish and Lithuanian court cases that are linked to the UK, ie where a child who had his or her habitual residence in the UK was taken to Lithuania or Poland (incoming child abductions from the UK). Both in Lithuania and Poland, the jurisdiction in international parental child abduction cases is concentrated. In Lithuania, in international child abduction cases, jurisdiction lies with the Vilnius Regional Court, and its ruling can be appealed to the Court of Appeal (Apeliacinis teismas). In Poland, eleven Regional Courts (located in major cities) are competent in the first instance, whereas their decisions can be appealed to the Court of Appeal in Warsaw. Additionally, in Poland, starting from 2018, second instance decisions in child abduction cases may be subject to cassation appeal and extraordinary appeal to the Supreme Court (Sąd Najwyższy). The jurisprudence of highest courts dealing with child abductions, namely the Court of Appeal in Lithuania and the Supreme Court in Poland, is discussed below. As regards the timeframe, while earlier leading cases can be noted in this research,¹² the article mainly focuses on the court decisions issued between 1 January 2019 and 31 December 2023.¹³

Before starting the analysis, some specific aspects of the procedure in child abduction cases in Poland should be signalled, as it recently attracted the EU’s attention. In child abduction cases, in Poland, designated public bodies can bring cassation¹⁴ and extraordinary appeals¹⁵ to the Supreme Court. Both types of appeals may suspend the enforcement of the return decision for a prolonged timeframe—2 months if the body contemplates the appeal, and until the conclusion of proceedings if the appeal is brought. Such provisions on suspension of enforcement of the return decision were analysed by the Court of Justice of the EU (CJEU) and were found to be contrary to the 1980 Hague Convention and Brussels IIa Regulation in Rzecznik Praw Dziecka case (C-638/22 PPU).¹⁶ Moreover, having received repeated information about the prolonged delays in the return of abducted children, in January 2023, the EU Commission launched an infringement procedure against Poland¹⁷ which still continues at the time of writing this article (November 2024). As the formal notice states ‘there is a systematic and persistent failure of Polish authorities to enforce judgments ordering the return of abducted children speedily and effectively to other EU Member States’. Even though the notice speaks about Brussels IIa Regulation and return to other EU Member States it is obvious that any systemic problems inherent to child abduction proceedings in Poland also impact cases involving abductions from the UK in a post-Brexit landscape.

Additionally, child abduction cases were not immune from the judicial independence crisis, which was observed in Poland in recent years. In the period under scrutiny, 1 January 2019 to 31 December 2023, decisions in child abduction cases were handed down not only by the Civil Chamber of the Supreme Court, but also by the Chamber of Extraordinary Control and Public Affairs, which hears extraordinary appeals. This chamber was found not to constitute an independent and impartial court established by law in the CJEU ruling in Krajowa Rada Sądownictwa case (C-718/21)¹⁸ and to violate Article 6 of the European Convention on Human Rights (ECHR) in the judgment of the European Court of Human Rights in Wałęsa v Poland case.¹⁹ The institution of extraordinary appeal itself was also found to violate Article 6 of the ECHR in the Wałęsa v. Poland case. Moreover, recent research into the case law of the Supreme Court for the period of 2020–2022 (16 decisions) suggests that the ‘new’ judges²⁰ in the Supreme Court were more willing to decide on non-returns as compared to ‘old’ judges.²¹ In these cases, the need for a very thorough (instead of effective) examination of the situation of the abducted child was underlined, and emphasis was put on the intention and ability of the abducting parent to return with the child to the country from which the child was abducted.²²

II. UK-related parental child abductions in Lithuania and Poland in numbers

UK-related parental child abductions form a considerable part of overall child abduction cases in both Lithuania and Poland. This is reflected in the available statistical data.

In Lithuania, the State Child Rights Protection and Adoption Service performs the functions of a central authority for the fulfilment of the obligations laid down in the 1980 Hague Convention and the 1996 Hague Convention, as well as in Regulation Brussels IIb. As part of its functions, it collects data on applications for the return of children allegedly abducted from and to Lithuania.²³ The statistics for 2019–2023 are presented in the table 1.

In Poland, the Ministry of Justice is a central authority for the fulfilment of the obligations laid down in the 1980 Hague Convention and the 1996 Hague Convention, as well as in the Regulation Brussels IIb. The statistics concerning applications filed based on the 1980 Hague Convention for the period 2008–2016, disaggregated by incoming and outgoing applications and States involved, including the UK, were published and are still available at the Ministry of Justice official (archive) website. These data reveal that the UK was at that time constantly ‘the most popular’ country of origin for child abductions to Poland. Additionally, a growth in applications originating from the UK could be observed. Since 2017, such statistics have no longer been published on the Ministry of Justice's website. When approached by the authors of this article, the Ministry of Justice kindly shared available data concerning the overall number of incoming cases filed to the courts of first instance in Poland, unfortunately without the previous disaggregation by the involved States. Considering the statistics for 2008–2016, which might give only a general assessment of the number of cases, one might assume that as the overall number of applications is growing,²⁴ the number of applications concerning abductions from the UK is also steadily increasing. This assumption does not consider, however, such important factors as Brexit and the resulting migrations from the UK and COVID-19 pandemic. The available statistics for the period from 2008 to the first half of 2023 are presented in the table 2.

According to the public database, during the period 2019–2023, in Lithuania, the Court of Appeal (the appellate forum for child abduction cases) published its decisions in 22 child abduction applications.²⁵ For the same period, only 23 decisions of the first instance court (Vilnius Regional Court) are available. This reveals that just part of the child abduction cases are published online, limiting the possibility of performing quantitative analysis of the child abduction cases. In Poland, eight decisions containing the word ‘abduction’ and given by the Civil Law Division of the Court of Appeal in Warsaw (the only second instance court for child abduction cases decided by specialized 11 first instance courts) appear in the public database²⁶ for the period 2019–2023. Only five of these decisions concern applications based on the 1980 Hague Convention, whereas the remaining ones mention the term ‘abduction’ in other contexts (for example, violation of personal rights caused by a previous child abduction). One of these five decisions concerns child abduction from the UK. Equally a modest amount of decisions given by first instance courts are traceable. The above numbers demonstrate that the majority of decisions of the courts of first and second instance in Poland concerning child abductions are not published in the public database. For the same period, 48 decisions containing the word ‘abduction’ popped up in the public database of the Supreme Court²⁷ (the ‘third’ instance court for child abduction cases), out of which 39 were handed down by the Civil Chamber and nine by the Extraordinary Appeal and Public Affairs Chamber. Out of 39 decisions of the Civil Chamber, seven concern child abduction applications from the UK, including one from Scotland. One decision of the Extraordinary Appeal and Public Affairs Chamber concerns child abduction application from the UK. Given the above data available, also in the case of Poland, the possibility of performing quantitative analysis of child abduction cases is impossible without having access to court documents in all of competent courts. This article thus focuses on qualitative analysis of the decisions of the highest courts dealing with child abduction cases in both countries and seeks to review their respective approaches.²⁸

III. Overview of the trends in the case law

Under the 1980 Hague Convention, when examining an application to return an allegedly abducted child, the court must establish whether the child has been removed and/or retained in another State unlawfully, ie it must, firstly, establish in which State the child has been habitually resident and, secondly, whether the removal of the child from the place where the child has his or her habitual residence or the failure to return the child satisfies the two conditions set out in Article 3(1) of the 1980 Hague Convention.²⁹ Having established that the child abduction took place, the court must then assess whether there are grounds for not returning the child to the State of habitual residence on the basis of the circumstances/exceptions set out in Articles 12 and 13 of the 1980 Hague Convention. If no such grounds for non-return are found, the court is obliged to issue return order.³⁰

Such a sequence of dealing with child abduction applications is followed by courts in Lithuania and Poland. However, their interpretation of the provisions of the 1980 Hague Convention varies, and some specific approaches can be noted. The analysis of the case law presented below focuses on the interpretation of the concept of habitual residence, understanding of wrongful removal or retention, and trends and specifics of the application of exceptions allowing refusal of an abducted child (Article 13 and Article 12 of the 1980 Hague Convention).

1. Establishing habitual residence of the child

Habitual residence as a connecting factor between a person and a state is established in a number of legal acts containing conflict of laws rules, including private international family law and related civil matters.³¹ This concept also plays a pivotal role in the 1980 Hague Convention, as it serves to establish whether the mandatory return mechanism applies. It is thus one of the most litigated issues under the Convention³² and the second most common reason for refusal (the child not being habitually resident in the Requesting State was a reason to refuse return in 13% of cases in 2021 globally³³).

In Lithuania, the concept of habitual residence seems to have established itself in national case law, and is overall interpreted consistently. The intra-EU cases, courts usually cite the CJEU case law and national jurisprudence. The Supreme Court of Lithuania has underlined that the Brussels IIa Regulation does not contain a concept of habitual residence and that the term ‘habitual residence’ should be interpreted autonomously, in particular in the light of the principles set out in the case law of the CJEU.³⁴ The Supreme Court has summarized the CJEU guidelines as follows: account must be taken of the individual situation of the person and of the specific circumstances of the case in question;³⁵ the following criteria are relevant for the determination of habitual residence: (i) the duration of the stay in the territory of the State concerned; (ii) the regularity of the stay in the territory of the State concerned; (iii) the conditions of the stay in the territory of the State concerned; (iv) the reasons for the stay in the territory of the State concerned; (v) the citizenship; (vi) place of employment and conditions of work; (vii) the knowledge of the language; (viii) the family and social ties; and (ix) the other relevant circumstances.³⁶

In recent years, national courts’ practice for establishing a child’s habitual residence seems to follow the usual patterns in other EU countries³⁷ which is based on an extensive CJEU case law. This was not, however, always the case. When analysing the Lithuanian court practice of 2004–2015, it was observed that in cases where a Lithuanian family had been settled in a foreign country for several years, for example, in the UK, when they applied to the court in Lithuania for divorce and parental responsibilities, the courts used to decide that the child's habitual residence had remained in Lithuania. This was so even where the child attended an educational institution, the parents were employed, and the family had a home abroad. The parents used to claim that according to them, they were residing in a foreign State (most often—the UK) only temporarily until they earned enough money (often the temporary nature of the situation lasted for 5 years and more, with no concrete plans and no date for return to Lithuania). The courts considered that the child's habitual residence remained in Lithuania because, for instance, the family owned real estate there, the child returned for holidays, or the child spoke Lithuanian and was brought up in accordance with Lithuanian traditions. Even the Supreme Court has raised doubts about whether such conclusions were in line with the objectives and the nature of private international law in the field of family relations.³⁸ Currently, such practice has changed.³⁹

In Poland, establishing a child’s habitual residence for the purpose of the 1980 Hague Convention does not generally seem to be subject to controversies.⁴⁰ Two cases in which the habitual residence of the child and the habitual residence of the left behind parent was considered as a prerequisite for the application of the 1980 Hague Convention might be mentioned. In one of the cases, the first instance court assumed that the Convention did not apply as the child had lived in the UK for only 6 months after the birth and (after the wrongful retention) resided in Poland for a much longer period of time. This approach was rightly corrected by the second instance court, which found that the child’s ‘habitual residence was in the UK, as it was there where the minor was born, where he lived before his departure, where he received medical treatment and where his parents lived and worked’. As a result, the 1980 Hague Convention was applied.⁴¹

In the second case, the left behind father filed an application for the return of his two children to the UK, but later modified it, asking for the ‘return’ to France, as due to professional reasons, he moved out from the UK and went back to his country of origin. The courts of both instances rejected the application, explaining that children were never habitually resident in France and, therefore, their ‘return’ to France would be contrary to Article 3 of the Convention, which requires return to the country of habitual residence, and not to any country, in which one of the parents is currently resident.⁴²

While the current case law appears relatively settled regarding the habitual residence of a child, the complexities introduced by globalization and the rise of transnational families may necessitate a reconsideration of this concept in the near future. Historically, the notion of habitual residence assumes a degree of stability and permanence within a single geografical location. However, modern trends such as increased mobility, cross-border employment, and the fluidity of family arrangements have made this assumption increasingly tenuous. For example, both Lithuania and Poland have citizens who live as ‘digital nomads’ or derive their income from investments, choosing to reside in multiple jurisdictions over the course of a year (eg rotating between the UK, Lithuania, India, and other countries). With the availability of private English-language schooling, some of these individuals relocate frequently, even with school-age children. Establishing the habitual residence of such families—particularly when the partners are of different nationalities—poses a significant challenge under the current interpretation of habitual residence and might require creative alternative approaches to be employed in the future.⁴³

2. Article 13(1)(a): Consent to the removal or retention of the child

Article 13(1)(a) of the 1980 Hague Convention allows for the refusal of the child's return if the rights of custody were not actually exercised at the time of the alleged abduction, or if the left-behind parent had consented to, or subsequently acquiesced in, the child's removal or retention. Regarding the expression of consent or acquiescence, cases under the 1980 Hague Convention necessitate clear and unambiguous consent.⁴⁴ Nevertheless, this does not imply that consent must be formally documented in writing. Instead, both consent and acquiescence can be deduced from the specific details of the case. To assess whether the consent was granted, courts often examine contextual factors, such as the mode, tone and content of correspondence, the timing and nature of objections, or the lack of active steps to prevent or contest the removal or retention.

In one of the recent cases in Lithuania,⁴⁵ the mother, attempting to prove that the father consented to their daughters’ removal, presented a Messenger conversation. In this conversation, the father stated he no longer wished to live with the mother and asked her and the girls to move out of his house. However, the court noted that the correspondence between the parties indicated the father's agreement to provide the child’s mother with money to buy or rent a house near him for her and the daughters. Furthermore, the father expressed hope that the mother and his daughters would not move far away. After evaluating this correspondence, the court found no basis to support the mother's claim that the father had consented to the removal of the minor daughters from the UK to Lithuania. The conversation did not discuss the mother's intention to leave the UK with her daughters and return to Lithuania. The court thus correctly ruled that there was no reason to apply the exception provided for in Article 13(1)(a) of the Hague Convention.

In one of the cases in Poland, the existence of the father’s consent was one of the main issues to be evaluated. The court of the first instance found that the applicant gave an ‘active consent’ for the mother to keep the child in Poland by accepting her plan to end her employment in the UK, notifying the airline that his son was not coming back with him to the UK and purchasing a ticket just for himself after his holidays in Poland. In the period afterwards, by contrast, his consent was ‘passive’. On subsequent visits to Poland, the father took no real action to cause his son's return to the UK. The father agreed with the mother on visits of the child to his family but never asked the mother to give him the child’s passport or identity card and did not take advantage of her offer to take care of the boy temporarily.⁴⁶

In the second instance, the court ordered the return of the child to the UK, finding that no consent had been given by the father. The court reminded that the 1980 Hague Convention does not require consent to be expressed in a specific form. Consequently, the consent can be inferred from the surrounding circumstances, which confirm that there was a knowing and genuine approval by both parents to the change of their child’s habitual residence.

The court considered that these conditions were not met by consent to temporary relocation motivated by special considerations, even if such consent allowed for an extended stay in another country or a stay was prolonged several times. Despite the parents' discussions about potentially changing their centre of life, no agreement was reached that the mother and the minor would permanently settle in Poland. It could be assumed that the father approved that the mother and the child stay in Poland for the duration of their relationship, with expectation that the mother would return to the UK with her son. While the father accepted their stay in Poland, he did not consider it to establish a new joint residence. Hence, the father’s consent was ruled to be related to a temporary stay in Poland only. The father's behaviour could not be interpreted as a manifestation of a more far-reaching passive consent. Specifically, the court pointed out that the absence of a request to the mother to surrender the child's documents, the placement of the child in the mother's care after the end of family meetings and the cancellation of the child’s flight ticket, did not amount to consent for the permanent stay of the child in Poland. These actions were inconsistent with the father’s unambiguous statements made during the online communication with the mother.⁴⁷ The Supreme Court, agreeing with the arguments of the second instance court, held that the father could not be deemed to have consented to the minor’s relocation. Consequently, the Supreme Court upheld the return decision.⁴⁸

The judicial reasoning in the examined cases demonstrates a consistent application of the principles enshrined in Article 13(1)(a) of the 1980 Hague Convention, aligning with established doctrine and approaches in other states.⁴⁹ Both above discussed decisions reflect adherence to the principle that consent must represent a deliberate and informed agreement to alter the child’s habitual residence. Temporary allowances or situational compromises, without clear agreement to permanent relocation, do not suffice. These practices confirm that the Polish and Lithuanian courts follow a methodical and case-sensitive approach to interpreting Article 13(1)(a), ensuring that decisions remain fair and rooted in the framework of the Convention.

3. Article 13(1)(b): Grave risk exception

Article 13(1)(b) of the Hague Convention allows the return of a child to the country of origin to be refused when there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.⁵⁰ This exception to return is very often invoked in child abduction cases and is the most common sole reason for refusal (in 2021, amounting to 29 per cent refusals globally⁵¹). However, what falls under the ‘grave risk’ exception is interpreted differently across the 1980 Hague Convention contracting parties.⁵² This is particularly visible in the case law of Lithuania and Poland, where the courts, in some cases, take a considerably broad interpretation, and focus not only on the safety of return as such, but assess the circumstances that are more relevant for custody proceedings.

The Supreme Court of Lithuania has provided a general definition of the ‘grave risk of harm’ exception.⁵³ It ruled that the ‘grave risk of harm’ referred to in Article 13(1)(b) of the 1980 Hague Convention ‘includes ultimate situations, where a child would not be able to develop normally in the Member State of origin due to the fact that the holder of parental rights and responsibilities does not exercise or exercise his/her rights and obligations appropriately, and there is a ground to believe that such behaviour would not change in the future (the persons acts inappropriately in front of a child, abuses alcohol, uses drugs or psychotropic substances, etc) or due to absence of objective conditions for the development of a child in the Member State of origin (eg state of war)’.⁵⁴ This definition is a well-established case law and is often cited in courts’ decisions.

In Lithuania, the ‘grave risk of harm’ defence was commonly invoked in cases where domestic violence was at issue, which is a common trend in many countries and which attracted a considerable academic discussion questioning how the Convention should be interpreted to properly take into account the interests of women suffering from gender-based violence.⁵⁵ The courts also tend to apply Article 13(1)(b) exception where the left-behind parent ‘behaves inappropriately’ in front of a child, eg abuses alcohol. Moreover, abducting mothers often raise the grave risk defence when a small child might be separated from his/her mother due to the return.

For instance, in a recent case before the Court of Appeal of Lithuania,⁵⁶ the abducting mother argued that the father’s alcohol abuse and disrespectful behaviour towards the mother in the presence of the children allowed reference to the grave risk exception. The court agreed, noting that the conflicting relationship between the parents and the father’s alcohol abuse during their cohabitation in the UK (confirmed by the mother’s applications to relevant authorities and correspondence with his mother and sister; however, no negative opinion from his employer or authorities was presented) undoubtedly had a negative impact on the emotional and mental development of the parties' minor daughters. The court ruled that returning the girls to the UK, where their father lives, would expose them to an unsafe and intolerable environment, causing them mental and emotional harm.⁵⁷ While it is doubtful if such a risk indeed amounted to ‘grave risk’ as interpreted in the Guide to Good Practice and the doctrine, nevertheless, this reason, together with the expressed wish of the children to stay in Lithuania (one child was in primary school, another in kindergarten), and the fact that they were settled in Lithuania (in educational institutions for 3–4 months) was ruled to justify a refusal to return the abducted children.⁵⁸

In another recent case,⁵⁹ in addition to domestic violence, the negative consequences of the separation of a small child from the mother were noted. The couple (not married) lived in the UK with their newborn son. When the baby was 1 month old, after an incident of domestic violence in November 2020 (registered with the police), the mother moved out and lived at her friend's house. In July 2021, the father with the mother and the child went to Lithuania, and the mother with the child did not return to live in the UK. The court of the first instance ruled that no abduction took place as the child was very small and had his registered address in Lithuania. On appeal, the court confirmed that the child abduction took place. However, the court noted that the child only had lived in the UK for the first 9 months of his life. The court considered that there was insufficient reason to conclude that a child of 9 months of age perceived his normal living environment as living in the UK, since a child of that age does not normally have strong social ties linked to a specific place of residence and is primarily concerned with his immediate family, who provide him with the necessary daily needs and a sense of physical and emotional security. According to the evidence, the minor child of the parties had been mainly cared for by his mother since his birth and had a very strong emotional bond with her.⁶⁰ In these circumstances, stated the court, the return of the child to the UK would only be possible with the mother (and, as a result, with her other two minor sons from her previous relationship). There was no evidence in the case to suggest that the mother would be in a position to provide the necessary living conditions for herself and her minor children if she were to return to the UK with the three children (there is no detailed analysis as to this in the judgement). Moreover, when the parents lived in the UK, there were pre-trial investigations initiated for assault, bodily harm, violent behaviour, harassment, etc The decision to refuse the return was adopted, based on Article 12 and Article 13(1)b of the Hague Convention.

In another interesting case,⁶¹ the spouses (the mother—Lithuanian, the father—foreign nationality) had two minor children and lived in the UK. In July 2021, the mother removed the children to Lithuania. The father started abduction proceedings, and in January 2022 the case reached Lithuanian courts. The first instance court ordered the return of children. On appeal, the mother argued that the children like living in Lithuania and Article 12 of the Hague Convention should be applied since the children were well integrated in the environment. Referring to Article 13(1)(b), the mother noted that if the children were returned to the UK, there was a risk of physical or psychological harm to the children, or a risk of being placed in another intolerable situation. In her view, the father was not able to take care of the children himself; he was very strict and categorical in his parenting (her arguments: he is of a different religion and forbids eating some types of meat; without her agreement, he performed their son’s circumcision). Such actions, according to the mother, amounted to psychological violence against the children. The Appeal Court did not agree. It ruled that none of the circumstances cited by the mother (prohibition to eat pork, circumcision of the genitalia of the boy) was such as to constitute extreme cases which would prevent the normal development of the minor children on return to the UK. These circumstances were only related to their father's religious and cultural requirements. There was no evidence that the father had failed to take proper care of the children, behaved inappropriately in front of them, abused alcohol, drugs or psychotropic substances, or caused them irreparable harm by other inappropriate acts during the time the family had been living in the UK. The court thus refused to apply ‘grave risk of harm’ exception.

In Poland, Article 13(1)(b) defence is raised in almost every case concerning application for return. The case law of the Polish Supreme Court relating to abductions from the UK to Poland is representative of an internal discrepancy on how the ‘grave risk’ exception is understood dependent on the particular composition of the bench. Some benches adopt a strict approach, while others take a more lenient stance and wider interpretation.⁶²

In one of its decisions,⁶³ the Supreme Court thoroughly explained the concept of ‘grave risk’. The return application was filed by a British father as a result of a wrongful retention of his daughter in Poland after the end of summer vacation. Because the relationship between the parents ended and the father decided to live with his new family, the mother wanted to move back to Poland with the daughter to take advantage of the support from her family. There were no allegations of domestic violence or inappropriate behaviour of the father and the argument against return revolved solely around the mother’s unwillingness to return to the UK. The courts of both instances decided on the return of the girl to the UK. The Supreme Court upheld the return decision.

In particular, the Supreme Court, referring to the case law of the ECtHR (namely, Maumousseau and Washington v France, X v Latvia, Vladimir Ushakov v Russia)⁶⁴ and its own previous decisions⁶⁵ explained that a refusal to order a child’s return based on the ‘grave risk’ exception is justified only by such physical or psychological harm as to place the child in an intolerable situation. Moreover, the risk of such harm, as well as the risk of creating another intolerable situation for the child, must be serious. Examples of situations include, in view of the Court, ‘cases of violence or sexual abuse of a child’ or ‘a pathological behaviour resulting from the addiction or from the mental illness of the applicant’. Other examples include risks related to the health of the child and the resulting inability to travel, the unavailability of the required medical treatment in the country of habitual residence, an armed conflict or famine in the region. On the contrary, a possible reduction in the standard of living of a child as a result of the return to the country of habitual residence, possible need for social benefits, the higher cost of living, unemployment of the left behind parent or difference in the quality of school education in the place of residence, noted the Supreme Court, cannot constitute a serious harm or other intolerable situation within the meaning of Article 13(1)(b) of the Convention.⁶⁶ A different conclusion would only be admissible if there was a serious, concrete risk of depriving the child of the possibility of fulfilling needs of an essential nature, which was not the case in this proceeding. The Court also underlined that even though reprehensible, the fact of irregular payment of maintenance by the applicant, could not be taken into consideration.

In this case, the argument was raised that the mother was not willing to return to the UK with the child and, therefore, the return would result in the risk of psychological harm to the child within the meaning of Article 13(1)(b) of the Convention. The Court underlined, however, that raising such an argument requires an assessment of whether, in the circumstances of the case, the abducting parent could objectively and reasonably be expected to return with the child to the country of habitual residence. In this context, the Court noted that the mother had resided in the UK for 18 years, she spoke English, she used to run a business in the UK, and functioned without problems in a social environment. The difficult relationship with the child’s father, her traumas and the sense of hurt cannot be considered as objective reasons precluding a return together with the child. The evidence did not indicate that her medical conditions could not be treated in the UK, or that she could not find employment there. There was no other circumstance preventing her return, such as a concrete threat of criminal sanctions for committing the offence of child abduction, the inability to defend her interests or those of the child in court proceedings concerning parental responsibility in the UK, or the legal impossibility of returning to the territory of the UK.

A similar view was presented in the most recent decision (falling within the timeframe of this article),⁶⁷ in which the Supreme Court had to assess the ‘grave risk’. In this case the courts of first and second instance had decided on the return of two children back to the UK, from where they were wrongfully removed by their mother. The removal was against the previous order of the UK court forbidding the mother to travel with children outside of England and Wales. The order was handed down on the application of the father, as the mother, after the break of their relationship, informed the father about her plans of going back to Poland with children, to which the father strongly objected.

The Supreme Court upheld the return decision. The Court underlined that the ‘grave risk’ cannot arise solely because of the separation from the abducting parent. Such separation, however difficult for the child, does not automatically satisfy the criterion of grave risk and therefore does not justify a refusal to order the return. Otherwise, the return would depend solely on the unilateral decision of the abducting parent as to whether that parent wished to return with the child. Such approach would undermine the objectives of the Convention, which does not allow one parent to take advantage of a situation unlawfully created by that parent as an argument that the return would be unbearable for the child. Elaborating further on unwillingness of the mother to return to the UK, the Court stressed that if the joint return of the abducting parent together with the child does not face objective obstacles and this parent does not want to return with the child, it can be assumed that this parent puts his or her own interests ahead of the best interest of the child. In this particular case, as pointed by the Supreme Court, there was no basis whatsoever for assuming that it would be objectively impossible for the mother to return with the children to the UK.⁶⁸ In light of the gathered evidence, she had lived and worked in the UK, earning an income that allowed her to support herself and contribute to the children's upbringing, she spoke English, and she could additionally benefit from the support of her mother, who resided permanently in the UK. The lack of her will to continue the relationship with the father of her children and the desire to live permanently in Poland due to the relationship with a new partner, was ruled not to amount to objective reasons precluding her return with the children to the UK.

When it comes to the left behind parent, the Court rightly explained that ordering the return of the child does not amount to deciding that the left behind parent will then become the sole or primary custodian of the child. The custody must be decided within a separate proceeding, namely one concerning parental responsibility. The doubts expressed by the mother as to whether the father was able to take care on his own of their children could not influence the return decision. In this case, however, the evidence showed that these doubts were groundless.

A different approach as to the understanding of the ‘grave risk’ exception and the overall aim of the Convention was presented in another decision⁶⁹ of the Supreme Court (handed down by the Chamber of Extraordinary Control and Public Affairs). This decision was criticized in the literature as an example of the approach, which constitutes a paradigm shift in the interpretation of the 1980 Hague Convention by insisting on the thorough examination of the situation of the child and the whole family and, in general, a hostile attitude towards cooperation in the field of child abduction.⁷⁰

The case concerned a wrongful retention of two small children in Poland. The return application was filed by the father, who had consented only to a temporary visit to Poland. The first instance court decided on non-return to the UK, but this decision was changed to a return decision by the court of second instance. The Supreme Court set aside the return order.

In its decision, the Supreme Court, referring to the ECtHR case law in Neulinger and Shuruk v Switzerland⁷¹ underlined the principle of the best interests of the child being an overarching principle, which cannot be reduced to the directive of a prompt return to the country of habitual residence.⁷² In this context, the Court noted that the best interests of the child must be understood in child abduction proceedings in the same manner as it is understood in other kinds of proceedings concerning a child. Hence, the best interests of the child, from a personal development perspective, will depend on a variety of individual circumstances, in particular the age and level of maturity of the child, the presence or absence of parents, the environment and experiences of the child. Best interests must be assessed on a case-by-case basis. As a result, the court should carry out a thorough examination of the entire family situation and a whole range of factors, in particular of a factual, emotional, psychological, material and medical nature, and is obliged to balance and reasonably assess the respective interests of members of the family, with a constant concern to determine what is the best solution for the abducted child.

In this particular proceeding—analysing the questions that should, in fact, be left for custody proceedings, and not assessed in the child abduction case—the court underlined the following circumstances: both parents had only Polish nationality and did not speak English well, both the mother and the father had their parents in Poland, who were the closest relatives for the minors, the main care for the children had been provided by the mother since their birth, the children at the time of the adjudication were very small (4 years old and almost 2 years old) and had lived in Poland for the majority of their lives⁷³ together with their mother in the flat of their maternal grandparents, they had attended kindergarten and had a relationship not only with their mother but also with the family living with her in the same flat, and furthermore, in the absence of their mother were taken care of by their grandparents at any time. In the view of the court, these circumstances should be considered for the purpose of Article 13(b) of the Hague Convention. In light of these circumstances, it was ruled that a return order would constitute the uprooting of the children from the family and social environment in which their lives had developed during their unlawful detention in Poland. Moreover, the court noted that the return to the UK would require from these children an adjustment to a foreign language, unfamiliar cultural conditions and unfamiliar teachers and relatives.

It should also be mentioned that both in Lithuania and Poland in very rare cases the courts assess whether adequate arrangements (under Brussels IIb Regulation in intra-EU cases) or protective measures (under 1996 Hague Child Protection Convention) could be established to ensure safe return. In case of return to the UK, such protective measures could indeed be used where concerns as to safe return exist.

4. Objection of the child

Though the 1980 Hague Convention was designed over 40 years ago when the children’s right to be heard and to participate were only developing,⁷⁴ Article 13(2) of the Hague Convention establishes another exception to the general rule of the prompt return of wrongfully removed or retained children by providing that the return can be refused if the child objects to being returned and has attained the age and degree of maturity at which it is appropriate to take account of his or her views. It can be noted that the extent to which the child objection exception in Article 13 of the 1980 Hague Convention aligns with Article 12 of the UNCRC,⁷⁵ ensuring the child's right to participate in decisions affecting them is debatable; moreover, practices for hearing the child in international abduction cases vary widely across the Contracting Parties.⁷⁶ This difference of practice can also be noted analysing Lithuanian and Polish case law.⁷⁷

In Lithuania, in child abduction cases, children of school age seem to be always heard, however, when children are younger, their objection to being returned is less likely to be taken into account. For instance, in a recent case where two children were abducted by their mother from the UK to Lithuania, the court cited the report of social services which, after hearing the children who were aged 6 and 10, concluded that they were not of the age and maturity to make a personal and independent decision on their own as to whether to reside permanently in one or another country, and to be able to understand the consequences of that decision in the long term.⁷⁸ On the other hand, in another case a 7-year-old child was heard (in fact, he was heard three times by social services and was constantly objecting to the return), and his refusal was the basis for applying Article 13(2) of the 1980 Hague Convention. In the view of the court, although the child was only 7 years old at the time of the interviews, his maturity and ability to express his opinion made it reasonable for the court to take the child's opinion into account. The child justified his wish to stay in Lithuania not only by making general statements, but also by giving some reasons—he stated that he felt happy in Lithuania, that his family was in Lithuania, and that Lithuania was his home.⁷⁹

In Poland, as explained in the jurisprudence, hearing of the child is not appropriate if the child is unable to comprehend the long-term consequences of his or her possible wishes to stay in the new country or to return to the country where he or she previously lived.⁸⁰ Hence the hearing of a child is not automatic. There is no standard age, where a child is perceived as fit to be heard, but it is submitted in the literature that generally children below 12 years of age should not be heard.⁸¹

In one of the cases concerning the application for the return of children to the UK, the Supreme Court⁸² considered (without however revealing the age of minors) that in this particular case children, due to their age and stage of development, were not able to foresee the consequences of their decisions concerning key life issues (for example, their place of residence). Additionally, as evidence gathered by lower instance courts showed minors were under the strong influence of their mother, with whom they were emotionally connected. They did not separate their own will from the will of their mother who had a decisive influence on their attitudes. This caused, for example, that under her influence, the children refused to disclose the origin of their injuries; they signalled that they were forbidden to speak on the subject. As a result, the assessment of the age and maturity of the minors justified the decision to abstain from their hearing.

The above-discussed cases reveal disparities in when children are heard and how children's objections are considered. Lithuanian courts in recent years widely hear children in family, including child abduction, cases, and young children’s views are heard. Poland, on the other hand, emphasizes the child’s ability to understand long-term consequences, often excluding younger voices.⁸³ However, as the overall approach to children's participation evolves toward greater inclusivity, these practices may align more closely in the future, fostering more consistent application of the Convention and enhancing respect for children’s participatory rights.

5. Non-return on the basis of Article 12(2): specifics of Lithuanian case law

As for other problematic points, relevant for the incoming abductions from the UK as well from other countries, is that Lithuanian courts sometimes use a different path to refuse the return. In addition to Article 13, in some cases they invoke Article 12(2) of the Hague Convention (allowing to refuse return where the proceedings have been commenced after the expiration of the period of 1 year since the unlawful removal or detention and the child has adapted to the new environment). Interestingly, the Lithuanian courts ignore the 1-year term the 1980 Hague Convention prescribes.⁸⁴ In particular, the view of the Court of Appeal of Lithuania, ‘the significance of the 1-year time limit referred to in Article 12 of the Hague Convention must not be assessed in isolation but in the context of the second paragraph of the recital in the preamble to the Hague Convention and the provisions of other international instruments. It must not be interpreted and applied in a formalistic manner, but must be taken into account in the light of the aim of the exception for the return of a child, namely, to ensure that the best interests of the child, who has adjusted to the child's new environment, are protected’.⁸⁵ Following such reasoning, the Court of Appeal of Lithuania when interpreting 1-year term has consistently ruled that ‘this is a procedural and formal requirement’ and can be ignored for the best interests of the child.⁸⁶ As a result, a child (especially a young one), who was abducted just a few months ago might be not returned if it is established that he or she has integrated into Lithuania (speaks the language, goes to school, has friends and extended family, etc) and it is in his/her best interest to continue residing here.

In Poland, in child abduction cases under review, Article 12(2) of the Hague Convention were not specifically analysed. In one of the above-mentioned cases,⁸⁷ the Supreme Court only shortly noted that circumstances such as the child's integration into the new environment do not, in principle, justify a refusal to order the return of the abducted child, provided that the application was submitted before the expiry of the 1-year time period. This might be due to the fact that in child abduction cases, the parties opposing the return decision are usually putting forward ‘a stronger’ argument of a grave risk to the child and within the ’grave risk’ argument parties demonstrate the integration with the new environment in Poland. An empirical study⁸⁸ of child abduction cases in Poland revealed that often abducting parents are focusing on a strategy aimed at protraction of the proceedings by submitting useless evidence. The longer period of time elapses before the conclusion of proceedings, the more intense becomes the integration of the child to the new environment. At the same time, the courts do not use their power to dismiss motions aimed at prolonging the proceedings.

Therefore, while Polish practice is similar to that of most states, the Lithuanian practice, particularly the flexible interpretation of the 1-year period under Article 12(2) of the Hague Convention, might appear unexpected to UK lawyers accustomed to a stricter approach. The Lithuanian approach claims to prioritize the child’s best interests over the strict procedural requirements of the Convention, however, it is problematic in light of the overall objective of the Convention to deter cross-border child abduction.

IV. Concluding remarks

The analysis of the case law of Lithuanian and Polish courts confirms that in both countries courts tend to interpret the 1980 Hague Convention in line with the case law of the CJEU when interpreting the term ‘habitual residence’, however, they sometimes take a more lenient stance in interpreting the overall objective the 1980 Hague Convention to ensure swift return of abducted children to the country of their habitual residence. In particular, the interpretation of the ‘grave risk exception’ seems to be understood by some courts in a much less restrictive way than, for instance, suggested in the official Guide to Good Practice to the Hague Convention.⁸⁹

A distinct characteristic of the case law of Lithuanian courts is the particular attention paid to whether abducted children have formed strong bonds with Lithuania during their time in the country. This analysis is conducted by the courts even in situations where the abduction occurred only a few months prior (for example, when the children have spent only 3–4 months in Lithuania). If such an adaption and integration into the environment are established, the request for the children's return can be denied, referencing Article 12(2) of the 1980 Hague Convention. This interpretation is seen as a way to prioritize the best interests of the child and the child's current well-being and stability over the application of the 1-year term set in Article 12(2) of the 1980 Hague Convention. In such a way, the approach to abduction proceedings and the duty to return the abducted child is materially changed ignoring the Convention text and objectives.

The very specific feature of child abduction proceedings in Poland is the availability of a cassation appeal and an extraordinary appeal and the resulting ex lege suspension of the enforcement of the return order. As a result, these proceedings are far from the requirement of ‘the most expeditious procedures available’ as set out in Article 2 of the 1980 Hague Convention. When it comes to the case law of the Supreme Court, one may observe a visible internal discrepancy as to the understanding of the ‘grave risk’ exception. Interestingly, in some decisions of the Supreme Court, just like in Lithuania the best interest of the child is being strongly highlighted. When coupled with the specific understating of the ‘grave risk’ exception and the alleged duty of the court to conduct a thorough examination of the situation not only of the abducted child but also the whole family and all the surrounding circumstances (the question that, as noted above, should be left for custody proceedings), the best interest of the child is used to justify non-return decisions.

Footnotes

Acknowledgements

This article was written under the auspices of a research project titled ‘Protection of international families with links to the European Union post-Brexit: Collaborative Scotland-EU partnership’, funded by the Royal Society of Edinburgh under the Saltire Facilitation Network Award Scheme. The national seminar aimed at exchange of experiences with practitioners organized on 16–17 May 2023 in Poland was supported by a grant under the Strategic Programme Excellence Initiative at Jagiellonian University.

Conflict of interest statement. None declared.