5.  The applicant was born in 1978. He is Polish and lives in Kent, the United Kingdom. He is married to M.J., who is also Polish. In 2005 the couple moved to the United Kingdom. Their daughter was born there in January 2010. Parental responsibility was exercised jointly by both parents.
6.  On 17 July 2012 M.J. and the child went to Poland on holiday, with the applicant’s consent. On 9 September 2012 M.J. informed the applicant that she was not coming back to the United Kingdom with the child.
7.  On 21 September 2012 the applicant applied to the United Kingdom Central Authority for a return order for the child under the Hague Convention.
8.  It appears that in mid-October 2012 the application was registered with the Grudziądz District Court. Judge D.K. was assigned to preside over the case.
9.  In response to the applicant’s request, M.J. submitted that in 2011 she and her husband had become distant from each other; the applicant had lost interest in his family and had been spending his spare time playing computer games. For those reasons, and also out of fear that the child would never again be allowed to leave the United Kingdom, M.J. did not agree to her daughter’s returning to the United Kingdom alone and informed the domestic court that she did not wish to go back there with the child.
10.  The first hearing was held on 19 December 2012 before the Grudziądz District Court, with Judge D.K. presiding. The applicant and his lawyer attended the hearing.
11.  The second hearing was held on 4 February 2013 before the same judge. The applicant and his lawyer attended the hearing. The domestic court heard two witnesses and ordered a report of experts in psychology from the Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno Konsultacyjny “RODK”).
12.  On 22 March 2013 the experts examined the applicant, M.J. and the child, who was three years old at the time. The report was issued on 17 April 2013.
13.  The third hearing was held on 8 May 2013 before Judge D.K. At this hearing, the Grudziądz District Court decided to dismiss the applicant’s request for the child’s return (III Nsm 999/12).
14.  The first-instance court ruled on the basis of the following evidence: testimony of the applicant, M.J. and the members of both families and the RODK experts’ report.
15.  The RODK experts were ordered to make the following assessment:
“whether moving [the child] into her father’s care, linked with her separation from the mother, would disturb [the child’s] sense of security and would affect her emotional state in a negative way; or is it recommended, [with a view to] the adequate psycho-physical development of the child, to [put the child under the father’s care] linked with [giving] an order to surrender the child by the mother.”
16.  The experts concluded that “the child’s return to the United Kingdom and her separation from the mother”, her primary caregiver, “would cause more emotional harm to the child than the lack of daily contact with her father.” In particular, the child’s sense of security and stability could be disturbed. To this effect the report read as follows: “Considering the [young] age and the sex of the child, it must be stated that the mother is currently best suited to satisfy her daughter’s needs.”
The experts also noted that the child was emotionally attached to both parents; she was developing well; perceived Poland and the United Kingdom on an equal footing; spoke Polish and had adapted well to her new life in Poland. It was recommended that the child should stay with her mother in Poland and have regular contact with her father.
17.  The first-instance court considered that the RODK’s report was thorough, clear and of a high evidentiary value.
18.  On the merits, the Grudziądz District Court considered that it was called to examine “the relationship between the child and [each of] the parents, her physical and psychological development and also, any [possible] physical or psychological harm [which could occur] in the event of the child’s return to her father without the mother.”
19.  The domestic court attached importance to the young age of the child (who was three years and four months old at the time of the ruling) and the fact that the mother had always been the child’s primary caregiver. The reasons for the mother’s refusal to return to the United Kingdom together with the child were not discussed by the domestic court. The district court held, relying on the experts’ report, that there was a grave risk of psychological harm if she were to return to the United Kingdom without her mother. It was noted that Article 13 (b) of the Hague Convention protected abducted children to such a great extent that it did not allow for their return if that was going to place them in a “disadvantageous situation” (w niekorzystnej sytuacji).
20.  The applicant appealed, arguing among others the following points of fact and law: the first-instance court ruled in breach of Article 13 (b) of the Hague Convention, firstly in that they concluded that in the circumstances of the case there was a grave risk that the child’s return to the United Kingdom would expose her to intolerable psychological harm and would place her in a disadvantageous situation, and secondly in that they wrongly assumed that the child would have to be separated from the mother even though the latter had not cited any objective obstacles to her returning to the United Kingdom; the first-instance court ruled in breach of Article 3 of the Convention on the Rights of the Child and its general directive that the best interest of the child be protected; the facts as established by the domestic court contradicted the evidence produced in the course of the proceedings; the court’s conclusion that the child’s return would expose her to intolerable psychological harm contradicted the findings of the expert report; and the court should not have refused to adjourn the hearing at which the applicant was not represented by a lawyer.
21.  At the appellate hearing, the applicant also argued (6) that the experts in psychology who had drafted the RODK’s report for the first‑instance court were incompetent.
22.  On 14 October 2013 the Toruń Regional Court dismissed the appeal (IV Ca 1865/12).
23.  The appellate court fully relied on the findings of fact made by the first-instance court, and held that the child’s return to the United Kingdom with or without the mother would place her in an intolerable situation (“w sytuacji nie do zniesienia”). Firstly, in view of the child’s very young age and the fact that since the retention the child had been under her mother’s care practically round the clock and that her contact with the applicant had been rare, the child’s separation from her mother would cause negative and irreversible consequences. Secondly, the child’s return with her mother would not have a positive impact on the child’s development either. To this effect, it was noted that M.J. had never adapted to her life in the United Kingdom; she was in conflict with the applicant and her departure from Poland would be against her will and forced by the circumstances.
24.  As to the remaining grounds of the applicant’s appeal, the regional court ruled in the following manner: contrary to the applicant’s impression, the RODK’s report was clear and adamant in its conclusion that the child’s best interest would be better served if she were allowed to stay in Poland with her mother; in view of the fact that the applicant’s lawyer had gone on holiday and the applicant had not agreed to be represented by a substitute lawyer, granting his motion for adjournment was not justified; and the argument about the incompetence of the RODK’s experts was, firstly, belated (the applicant had not raised that issue before the first-instance court or in his appeal) and, secondly, inconsistent with the applicant’s reliance on the impugned report in support of his remaining arguments.
25.  At the first hearing, held on 19 December 2012 by the Grudziądz District Court, the applicant’s lawyer applied, expressly citing Article 21 of the Hague Convention, for arrangements for organising and securing the effective exercise of the applicant’s right of contact during the Hague Convention proceedings.
26.  The domestic court did not rule on that application.
27.  On 28 December 2012 the applicant applied to the Grudziądz District Court for a contact order in respect of the child. He did not rely on Article 21 of the Hague Convention. He asked, inter alia, for an interim order to be issued obliging M.J. for the duration of the Hague Convention proceedings to allow him to take the child to his house every second and fourth weekend of the month from 3 p.m. on Friday until 8 p.m. on Sunday, and to talk to the child by telephone or Skype every Monday, Wednesday and Friday between 4 p.m. and 7 p.m.
28.   On 28 February 2013 the Grudziądz District Court, with D.K. as the presiding judge, decided under Article 445 1 § 1 and 2 of the Code of Civil Procedure to stay the proceedings concerning the applicant’s contact with the child until the end of the couple’s divorce proceedings, which had been instituted before the Toruń Regional Court on 14 January 2013 (III. R. Nsm 35/13).
29.  On 25 March 2013 the divorce application lodged by M.J. (IC 117/13) was rejected by the Toruń Regional Court, with S.M. as the presiding judge accompanied by two lay judges. The regional court favoured the jurisdiction of the English courts because the last common place of residence of the couple was in Maidstone, the United Kingdom. On 24 June 2013 the Gdańsk Court of Appeal, with D.K. as the presiding judge, dismissed M.J.’s interlocutory appeal against that decision.
30.  The applicant submitted that when the Hague Convention proceedings had been pending in Poland, he had seen his daughter on several occasions, in the mother’s house and in her presence.
31.  On 28 November 2014 the Grudziadz District Court issued a decision on the applicant’s contact with his daughter. A copy of this decision has not been submitted to the Court. It appears that the applicant was authorised to see his daughter the second and the fourth weekend of every month; during one week of winter holidays; during two weeks of summer holidays and on selected days of Christmas and Easter holidays. It appears that the applicant did not appeal against this decision.
On 31 August 2015 the Grudziądz District Court, with D.K. as presiding judge, confirmed that the above-mentioned decision was binding and enforceable as of 8 July 2015.
32. Divorce proceedings are currently pending in the United Kingdom.
33.  The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction which has been ratified by Poland (Dz.U.1995 r. Nr 108, poz. 528, date of entry onto force 1 November 1992) and the United Kingdom provides, in so far as relevant, as follows.
“... Article 3
The removal or the retention of a child is to be considered wrongful where -
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Article 4
The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.
...
Article 11
The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
 If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.
Article 12
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.
Article 13
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) 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.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.
...
Article 16
After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.
Article 19
A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.
...”
34.  The Explanatory Report on the 1980 Hague Child Abduction Convention, prepared by Elisa Pérez-Vera and published by The Hague Conference on Private International Law (HCCH) in 1982 ( “the Pérez‑Vera Report”), provides the following comments on the notion of “the best interest of the child”:
“... ‘the legal standard ‘the best interest of the child’ is that at first view of such vagueness that it seems to resemble more closely a sociological paradigm than a concrete juridical standard ... the general statement of the standard does not make it clear whether ‘the interest’ of the child to be served are those of the immediate aftermath of the decision, of the adolescence of the child, of young adulthood, maturity, senescence or old age’ ...” (§21, p. 431)
“... [the philosophy of the Convention] can be defined as follows: the struggle against the great increase on international child abductions must always be inspired by the desire to protect children and should be based upon an interpretation of their true interests...the right not to be removed or retained in the name of more or less arguable rights concerning its person is one of the most objective examples of what constitutes the interests of the child...’the presumption generally stated is that the true victim of the ‘childnapping’ is the child himself, who suffers from the sudden upsetting of his stability, the traumatic loss of contact with the parent who has been in charge of his upbringing, the uncertainty and frustration which come with the necessity to adapt to a strange language, unfamiliar cultural conditions and unknown teachers and relatives’ ...” (§24, pp. 431 and 432)
“It is thus legitimate to assert that the two objects of the Convention – one preventive, the other designed to secure the immediate reintegration of the child into his habitual environment – both correspond to a specific idea of what constitutes the ‘best interests of the child’ ... However ... it has to be admitted that the removal of the child can sometimes be justified by objective reasons which have to do either with its person, or with the environment with which it is most closely connected ...” (§ 25, p. 432)”
35.  As a consequence, the Hague Convention contains a number of clearly derived from a consideration of the interest of the child, namely that of a serious risk that a child’s return would expose him or her to “physical or psychological harm” or otherwise place the child in an “intolerable situation”.
36.  The Pérez-Vera Report contains the following general comments about the exceptions to the principle of the child’s prompt return under Article 13 (b):
“... [the exceptions] to the rule concerning the return of the child must be applied only as far as they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter... The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them – those of the child’s habitual residence – are in principle best placed to decide upon questions of custody and access. As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child’s residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration...” (§34, pp. 434 and 435)
“... the exceptions [in Articles 13 and 20] do not apply automatically, in that they do not invariably result in the child’s retention; nevertheless, the very nature of these exceptions gives judges a discretion – and does not impose upon them a duty – to refuse to return a child in certain circumstances ...” (§113 p. 460)
“... With regard to article 13, the introductory past of the first paragraph highlights the fact that the burden of proving the facts stated in sub-paragraphs a and b is imposed on the person who opposes the return of the child ...” (§ 114, p. 460)
“... The exceptions contained in [article 13] b deal with situations ... where the return of the child would be contrary to its interests ... Each of the terms used in this provision, is the result of a fragile compromise reached during the deliberations of the Special Commission and has been kept unaltered. Thus it cannot be inferred, a contrario, from the rejection during the Fourteenth Session of proposals favouring the inclusion of an express provision stating that this exception could not be invoked if the return of the child might harm its economic or educational prospects, that the exceptions are to receive a wide interpretation ...” (§116, p. 461)
37.  With regard to Article 29 the Pérez-Vera Report states that the aim of the Hague Convention is to provide additional means of helping persons whose custody or contact rights have been breached. Those persons have a choice either to apply directly to the Central Authorities, as provided for in the Hague Convention, or to institute relevant proceedings before the authorities of the State where the child is located. In such a case, where the applicants have recourse to a direct action before the competent authorities, they can choose to submit their application “whether or not under the provisions” of the Hague Convention. In the latter case, according to the explanatory report, the authorities are not obliged to apply the provisions of the convention unless they have been incorporated in their domestic law.
38.  The relevant provisions of the United Nations Convention on the Rights of the Child, signed in New York on 20 November 1989, read as follows:
Preamble
“The States Parties to the present Convention,
...
Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,
Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, ...
Have agreed as follows:
...
Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration...
Article 7 1. The child shall be registered immediately after birth and shall have the right from birth... to know and be cared for by his or her parents...
Article 9 2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child...
Article 18 1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
...”
39.  Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (known as “Brussels II bis Regulation”) reads, in particular, as follows:
“...
(12) The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility.
(13) In the interest of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case. However, in this case the second court should not be allowed to transfer the case to a third court.
...
(17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.
...
Article 10
Jurisdiction in cases of child abduction
In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:
(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention;
or
(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:
(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;
(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);
(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);
(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.
Article 11
Return of the child 1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter "the 1980 Hague Convention"), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.
... 3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.
Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged. 4. A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. 5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard.
...”
40.  The European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children (known as “Luxembourg Convention”) reads, in so far as relevant, as follows:
“...
Article 1
For the purposes of this Convention:
a child means a person of any nationality, so long as he is under 16 years of age and has not the right to decide on his own place of residence under the law of his habitual residence, the law of his nationality or the internal law of the State addressed;
...
d improper removal means the removal of a child across an international frontier in breach of a decision relating to his custody which has been given in a Contracting State and which is enforceable in such a State; improper removal also includes:
i the failure to return a child across an international frontier at the end of a period of the exercise of the right of access to this child or at the end of any other temporary stay in a territory other than that where the custody is exercised;
...
Article 5
1 The central authority in the State addressed shall take or cause to be taken without delay all steps which it considers to be appropriate, if necessary by instituting proceedings before its competent authorities, in order:
...
b to avoid, in particular by any necessary provisional measures, prejudice to the interests of the child or of the applicant;
...
Article 8
1 In the case of an improper removal, the central authority of the State addressed shall cause steps to be taken forthwith to restore the custody of the child where:
a at the time of the institution of the proceedings in the State where the decision was given or at the time of the improper removal, if earlier, the child and his parents had as their sole nationality the nationality of that State and the child had his habitual residence in the territory of that State, and
b a request for the restoration was made to a central authority within a period of six months from the date of the improper removal.
...
Article 11
...
3 Where no decision on the right of access has been taken or where recognition or enforcement of the decision relating to custody is refused, the central authority of the State addressed may apply to its competent authorities for a decision on the right of access, if the person claiming a right of access so requests.
...
Article 19
This Convention shall not exclude the possibility of relying on any other international instrument in force between the State of origin and the State addressed or on any other law of the State addressed not derived from an international agreement for the purpose of obtaining recognition or enforcement of a decision.
Article 20
1 This Convention shall not affect any obligations which a Contracting State may have towards a non-Contracting State under an international instrument dealing with matters governed by this Convention.
2 When two or more Contracting States have enacted uniform laws in relation to custody of children or created a special system of recognition or enforcement of decisions in this field, or if they should do so in the future, they shall be free to apply, between themselves, those laws or that system in place of this Convention or any part of it. In order to avail themselves of this provision the State shall notify their decision to the Secretary General of the Council of Europe. Any alteration or revocation of this decision must also be notified.