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High Court of Justice in Northern Ireland Family Division Decisions |
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You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Family Division Decisions >> Jakub and Dawid, Re [2009] NIFam 23 (01 December 2009) URL: http://www.bailii.org/nie/cases/NIHC/Fam/2009/23.html Cite as: [2009] NIFam 23 |
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Ref: STE7681
BETWEEN:
STEPHENS J
Introduction
[1] I have anonymised this judgment. The names used are not the real names of any of the individuals involved. Nothing should be reported which would identify any of the children or any member of their extended families. I refer to (a) "the children", both boys now 8 and 6 years old respectively, who are the subject of an order of a Polish court, as Jakub and Dawid;
(b) the mother and appellant as Zofia;
(c) the father and respondent as Dominik;
(d) the mother's present partner as Gavin;
(e) the mother's child with Gavin, who is now 1 year old, as Hugh.
Dominik, Zofia, Jakub and Dawid are all Polish nationals. Gavin is British.
[2] This is an appeal by Zofia against the registration of an order of a Polish court dated 6 May 2008. The effect of the order was that it awarded residence to her husband Dominik of their two children Jakub and Dawid ("the children"). At the time that the order was made Zofia and the children resided in Northern Ireland and Dominik resided in Poland. Dominik wishes to enforce the order of the Polish court so that the children live with him in Poland. [3] Ms Walsh QC and Ms McBride appeared on behalf of Zofia, and Mr Long QC and Ms McCullough appeared on behalf of Dominik. I am indebted to both sets of counsel for their careful preparation of the case and their well-marshalled written and oral submissions. [4] The parties are requested to consider the terms of this judgment and to inform the Office of Care and Protection in writing within one week as to whether there is any reason why the judgment should not be published on the Court Service website or as to whether it requires any further anonymisation prior to publication. If the Office is not so informed within that timescale then it will be submitted to the Library for publication in its present form.Factual Background
[5] Zofia and Dominik are Polish nationals and they married in 1998. In July 2006 Zofia and Dominik agreed that they would move to Northern Ireland. Zofia arrived in Northern Ireland on 26 August 2006 and the rest of the family on 14 December 2006. Dominik states that it was whilst Zofia was alone in Northern Ireland that she commenced a relationship with Gavin who is now her partner. Zofia states that this relationship only started after she and Dominik separated. Zofia states that Dominik was never happy in Northern Ireland and that he was violent and abusive towards her. [6] On 8 May 2007 Zofia went to work as usual but upon her return she found that without her consent or knowledge Dominik had left Northern Ireland and returned to Poland with the children. Zofia travelled to Poland on 28 May 2007. [7] On 6 June 2007 and in Poland Zofia commenced separation proceedings against Dominik. Under Polish law those proceedings necessarily include questions as to "custody, child support and parental authority". [8] After the separation proceedings were commenced an application was brought also in Poland under the Hague Convention for the return of the children to Northern Ireland. On 20 November 2007 the court in Poland in effect ordered the return of the children to Northern Ireland. The court in giving its judgment stated:"The order to release the children issued on the basis of the Convention is designed only to restore the situation before the abduction, before the breach of rights of custody, as discussed in Article 3. The Convention does not provide a basis for a substantive statement concerning the regulation of child care. This means that once the children are returned to Ireland, the parties will be able to obtain a decision in Poland regarding regulation of child care. In actual fact divorce proceedings between the parties are currently in progress at the District Court in Katowice".
It also stated:
"As already mentioned in this case the court is not examining who should exercise parental authority. This will be decided during divorce proceedings, in which case psychological evidence may be seen as essential".
I set out this part of the judgment not on the basis that it is legally correct, about which I have not heard any argument, but to illustrate that Zofia had commenced separation proceedings in Poland and it was envisaged by Zofia, Dominik and the court in Poland that the Polish court would hear and determine who should exercise parental responsibility in respect of Jakub and Dawid.
[9] On 15 January 2008 Zofia and the children returned to Northern Ireland. Zofia had in the meantime commenced a relationship with Gavin in Northern Ireland and was expecting a child from that relationship. Dominik remained in Poland. [10] On 25 February 2008 Dominik's appeal in Poland in respect of the Hague Convention proceedings was dismissed. [11] On 6 May 2008 and on foot of Zofia's separation proceedings the district court in Poland made two orders. The relevant parts of the longer order were as follows:-"1. Rules separation of marriage between (Zofia and Dominik) due to the fault of (Zofia).
2. Exercising of parental power over the juveniles is assigned to the father Dominik, limiting the parental authority of the mother, Zofia, to personal contacts and the right to mutually agree on essential issues related to the children concerning choice of school, profession, means of treatment in case of illness.
3. The duty of bearing the costs of keeping the minors is imposed on Dominik by means of services in kind and on (Zofia) by paying (1,100 zlotys) a month payable to the children's father Dominik.
4. Does not rule on place of residence of both parties.
5. Imposes court fees on Zofia
6. Awards (assessed costs) from Zofia to Dominik "[12] The shorter order dated 6 May 2008 provided:-
"By means of protection during the trial to give parental care to (Dominik) over the minor children and established their temporary place of residence each time in (Dominik's) place of residence".[13] On 20 May 2008 Zofia applied for a residence order in Northern Ireland on the basis that Dominik had returned to Northern Ireland and informed the police that he had a court order to return the children to Poland. Zofia stated that "she knew that this was untrue" and therefore sought the protection of a residence order in her favour "in order to give my children further protection". She also stated that the order in Poland on 20 November 2007 had granted "custody" of the children to her. The application for a residence order was moved ex parte on the same day. On the hearing of that ex parte application the Family Proceedings Court was not informed about the orders that had been made in Poland on 6 May 2008. It was also not informed that the order in Poland on 20 November 2007 had not granted custody of the two children to Zofia. The family proceedings court granted an interim residence order in favour of Zofia. [14] On 20 May 2008 Zofia also applied in Northern Ireland ex parte and was granted a non molestation order against Dominik. [15] The proceedings in Northern Ireland were transferred to the High Court. There then followed a period during which Dominik did not co-operate with the court in identifying the issues and did not comply with directions. There were difficulties in obtaining information as to and then in translating, the various orders of the courts in Poland. At a review on 12 September 2008 the High Court in Northern Ireland was informed that the final outcome in Poland was that Zofia had custody and can have the children living in Northern Ireland. [16] On 15 September 2008 translations of various orders made in Poland were forwarded to the High Court in Northern Ireland. Included was a translation of a Polish Appeals Court order dated 11 July 2008. It amended the ruling of 6 May 2008 "so that Dominik's claim for an award of a guarantee can be dismissed". During the course of its judgment the Appeals Court in Poland stated:-
"Based on the material available, the District Court established that the children have emotional bonds with both parents. However, taking into account both son's attitudes and the parents respective attitudes to parental care, the court of first instance ruled that, as a parent, (Dominik) would provide a better guarantee for the emotional and social development of the children in their previous environment. The District Court expressed the opinion that (Zofia) appellant, in starting a relationship with another man at the same time as encouraging the whole family to come to Ireland and seeing the financial and linguistic problems caused as well as problems of adaptation, revealed a high level of selfishness, lack of imagination and commonsense regarding the children's wellbeing. The appellant should have realised the possible negative consequences of her actions and the children all the more, being a by profession. As a result, the District Court ruled that the father had the more correct attitude to parenting while (Zofia) put her feelings first, and those of the children second. In the view of the court of first instance, (Dominik) should exercise parental authority over the children during the proceedings, as he will guarantee the children a feeling of emotional and financial security and acceptance, and he will reduce any feelings of rejection and unhappiness with the situation they are currently in, living with a man whom they blame for the break-up of their family unit. The decision of the court concurs with the expectations of the oldest son, as expressed during a phone conversation with his father. However, the youngest son, although he does not express himself as clearly as his older brother, also requires his father's support on a daily basis and his help in reducing any negative behaviour resulting from the break-up of the family unit. The District Court based its ruling on Article 755(1) of the Code of Civil Procedure."[17] At a review on 10 October 2008 it was represented to the High Court in Northern Ireland that the effect of this decision of the Appeals Court in Poland was that "there was an order in Poland giving residence to Dominik but this was appealed and set aside". In the event this description turns out to be incorrect. The order dated 11 July 2008 in Poland dealt solely with the shorter of the two orders dated 6 May 2008. That order had in effect granted residence of the children to Dominik during the appeal process. Zofia had appealed in Poland against both the longer and substantive order dated 6 May 2008 and also against the shorter order. The decision of the Appeals Court in Poland on 11 July 2008 set aside this shorter order and therefore did not require the children to return to Poland pending the outcome of the appeal in Poland. [18] On foot of the information provided to the High Court in Northern Ireland it was anticipated that the only issue outstanding was as to contact between Dominik and the two children. Dominik was again directed to set out his case whatever it might be. A hearing date was fixed in January 2009. Dominik's solicitors indicated that they were considering coming off record. There was a continuing failure by Dominik to comply with the court's directions. [19] In January 2009 there was a change of solicitors for Dominik and the hearing date was vacated. At this stage the possibility was raised that the court proceedings in Poland had not been concluded on 11 July 2008 and accordingly an issue arose as to whether the courts in Poland or Northern Ireland had jurisdiction. Subject to and without prejudice to that question Dominik commenced in Northern Ireland an application for a residence order and a relocation application. [20] The court directed that a telephone conference call should be conducted involving the Northern Irish solicitors for Zofia and her lawyers in Poland and that this telephone call should be minuted with a report to the court. [21] On 26 February 2009 the telephone conference call between Zofia's Northern Irish and Polish lawyers took place. It was apparent from the report to the court that proceedings were continuing in Poland and indeed that on 24 February 2009 it had been ordered that Zofia had supervision and residence of the children for the period of the Polish proceedings and until all issues were decided in Poland. [22] On 20 March 2009 Zofia, Dominik and the children were seen in Poland by a psychologist, an educator and the director of the Diagnostic and Consultative Family Centre. The assessment was carried out on the basis of an analysis of the case files and psychological and educational tests. A detailed 12 page report dated 17 April 2009 balancing various welfare issues was provided to the Appeals Court in Poland. That report contained a number of criticisms of Zofia's ability to care for the children. I set out some of the criticisms:-
(a) "From the material collected it appears that the mother's ability to independently care for her children and to ensure them a proper upbringing is limited. This is why the plaintiff is dependent on the help of her mother who comes to Ireland from time to time but currently due to health problems she is not able to help her daughter".
(b) "It does happen that the children may stay at home for 1-2 hours without any adult care. The emotional and educational situation of the children is also negative, especially since there is no regular contact with the father which does not allow for the building of a stable relationship and the strengthening of their father's presence in their lives and consciousness."
(c) "The mother, in spite of declaring the need for maintaining contact between the children and their father, is actually not actively doing anything to promote this and is in fact, by her behaviour, tending to build a false image of their father in the children's perception and marginalising his participation in their lives."
(d) "During psychological testing, the Plaintiff initially made normal verbal and emotional contact, but with time she became more and more agitated and reacted emotionally to the subject's discussed, was verbally aggressive towards her husband and impulsive. She was impatient, stressing the need to finish the test as soon as possible but simultaneously acting in such a way that the interview became more complicated and lasted much longer. She could not prevent herself from making provocative, aggressive, ironic and cynical comments to her husband."
(e) "She has declared that without any doubt her current relationship will last and forms a guarantee of security for her sons but at the same time she reveals difficulties in finding a place and meaning for her current life partner in the family structure."[23] The report dated 17 April 2009 also dealt with the wishes and feelings of the children. The elder child stating that he would like to stay in Ireland with his mother and maintain contact with his father. The youngest child stating that he would like to live in Poland although he had no basis for this choice. One of the conclusions and recommendations contained in the report was:-
"The psycho educational tests have allowed the experts to find a more favourable parental predisposition in the father than in the mother. In addition, his living conditions seem to be more stable for normal psychological development of the children. Having diagnosed a better parental predisposition in the father, the actual decision as to who will be exercising parental care in accordance with their abilities will be taken by the court".[24] On 2 April 2009 at a directions hearing held in Northern Ireland the court was informed that Zofia accepted the jurisdiction of the Polish courts but sought an adjournment to facilitate documents relating to the Northern Irish court proceedings being transferred to the courts in Poland. The agreement between the parties was expressed as follows:-
"The Appeals Courts in Katowice, Poland is seized of separation proceedings issued at the instance of (Zofia) on 6 June 2007 in the District Court in Katowice and that the said Appeals Court has jurisdiction in matters relating to parental responsibility connected with those proceedings".
That agreement formed a recital to the court order dated 2 April 2009 which provided for the release of documents relating to the Northern Irish proceedings to the Appeals Court in Poland.
[25] On 3 April 2009 at a further review hearing and on consent between the parties it was ordered in Northern Ireland that:-"The court declines jurisdiction in respect of the parties respective substantive applications under Council Regulation (EC) 2201/2003 of 27 November 2003 upon the grounds that the matrimonial proceedings issued at the instance of (Zofia) on 6 June 2007 in the District Court in Katowice were properly within the jurisdiction of the courts in Poland and the courts in Poland were first seized within the terms of the regulation from that date. The court accordingly dismisses the parties' respective applications."
This order brought an end to both Zofia's and Dominik's applications in Northern Ireland for residence orders.
[26] On 5 June 2009 Zofia's appeal in Poland against the order dated 6 May 2008 was dismissed. The effect of the dismissal of the appeal is that the 6 May 2008 Polish court judgment became legally binding (effective, with legal power) from the date of the court judgment of the Appeals Court in Katowice. Dominik on foot of the court order dated 6 May 2008 wished to have his sons returned from Northern Ireland to Poland. [27] On 10 July 2009 Zofia commenced divorce proceedings in Northern Ireland. In her petition she sought a residence order in respect of the children. The divorce proceedings have not been served on Dominik. [28] On 3 August 2009 an application was brought to register the order of the Polish court dated 6 May 2008. [29] By order dated 6 August 2009 it was provided that the longer order of the Polish court dated 6 May 2008 be registered, that Zofia had a right of appeal against the order to register and that such an appeal must be lodged no later than 4 pm one month from the date of service of the order. [30] On 21 August 2009 the order of 6 August 2009 was served on Zofia. [31] On 18 September 2009 Zofia appealed against the order dated 6 August 2009 registering the order of the Polish court dated 6 May 2008. [32] On 5 November 2009 the Official Solicitor in Northern Ireland interviewed the children to determine their wishes and feelings. On this occasion both children indicated their preference to remain with their mother in Northern Ireland and indicated that they did not want to live in Poland.The issues on the appeal against registration and in the alternative against enforcement
[33] Zofia contends that her appeal against the registration of the Polish court order dated 6 May 2008 should be allowed on the basis that:-(a) Recognition is manifestly contrary to the public policy of the member state in which recognition is sought taking into account the best interests of the child see Article 23(a) of Council Regulation (EC) No. 2201/2003 ("Brussels II revised"). Zofia contends that the order dated 6 May 2008 is ambiguous and that it would be manifestly contrary to public policy to register an ambiguous order. She also contends that there are welfare issues which should lead to the conclusion that it is manifestly contrary to public policy.
(b) The children do not wish to return to Poland and that their views should be taken into consideration on matters which concern them in accordance with their age and maturity, see Article 24(1) of the Charter of Fundamental Rights of the European Union and Article 33 of Brussels II revised.
(c) That if the appeal against registration is not successful that enforcement procedures are governed by the law of Northern Ireland and that this court should decline to enforce it upon welfare grounds.
Legal principles in relation to recognition and enforcement
[34] Article 23 of Brussels II Revised permits non-recognition of a judgment of another member state on a number of grounds. The only ground relied upon by Zofia is that contained in Article 23(a) which provides:-"A judgment relating to parental responsibilities should not be recognised:
(a) if such recognition is manifestly contrary to the public policy of the member state in which recognition is sought taking into account the best interests of the child;"[35] The predecessor of Article 23(a) of Brussels II Revised which was identical in all material particulars was considered by Holman J in Re: S (Brussels II: Recognition: Best Interests of Child) (No. 1) [2004] 1 FLR 571. That case concerned the recognition of a Belgium judgment which had been made just over one year earlier and which had been appealed and the appeal determined 4 months earlier. Holman J stated:-
"[32] It seems to me that, in applying Article 15(2)(e) I have to give proper weight and effect to the language that is used. The article does not refer simply to recognition being contrary to the best interests of the child. It refers rather to recognition being contrary to public policy, taking into account the best interests of the child. Merely to consider the best interests of the child would be to review the Belgium judgment (which is clearly welfare based) as to a substance, which is forbidden by Article 19. I have to take into account the best interests of M, but ultimately to consider whether recognition is manifestly contrary to English public policy. To say that something is contrary to public policy is a high hurdle, to which the article adds the word 'manifestly'. This is an international Convention and I must apply it purposively, giving appropriate weight to the word manifestly."
Holman J then referred to the decision of the European Court in Kromnach Vivastop Bamberski [2001] 3 WLR 488 in which the court had said:-
"With regard more specifically to recourse to the public policy clause the court has made it clear that such recourse is to be had only in exceptional cases "
It then appears from paragraph [33] of his judgment that Holman J thought that the order of which recognition was sought was
"not an order which was in his best interest, but I am quite unable to conclude that it is so contrary to his best interests that it would be actually contrary, let alone manifestly contrary to some English principle of public policy to enforce it".[36] Holman J also recognised that there was a distinction between recognition and enforcement so that there was in effect a two stage process. [37] Holman J considered the question of enforcement of a registered foreign order in the case of Re: S (Brussels II: Recognition: Best Interests of Children) (No. 2) [2004] 1 FLR 582. He stated:-
"[13] when a court enforces an order of its own one of the powers it may exercise, actually or implicitly, is the power to vary. That power is not available when enforcing under Brussels II. Further, within a purely domestic case the welfare of the child must be paramount even in the enforcement process, although consideration of obedience to court orders is important too.
[14] Under Section 2, Enforcement of Brussels II, however, the duty of, and discretion in, the court are different. Under Article 21 there is an overriding duty to enforce. There can be no review as to substance and only limited discretion under Article 24(2). There is no variation power. The duty is to make the foreign judgment happen and there is only such discretion as fulfilment of that duty requires. I agree with Mr Everall that the court has some discretion to 'phase in', if and to the extent that phasing in will eventually best make the foreign judgment happen. That is all. The moment the court exercises any more general discretion it will be reviewing the foreign judgment as to its substance or exercising a discretion outside the scope of Article 24(2). The target has to be to make the foreign judgment happen as soon as that can effectively be achieved. The position of the child, or of the adults, and the wellbeing of the child are all relevant. If, for instance, contact is forced too quickly so the child later refuses to go, that is not effectively to enforce or make the judgment happen. But welfare is not paramount or even the primary consideration".
Those are the principles which I seek to apply in this case.
[38] I was referred by Ms Walsh to the decision in Re: S (Brussels II Revised: Enforcement of Contact Order) [2008] 2 FLR 1358. I do not conclude that the judgment in that case has changed the principles which I have set out in the preceding paragraphs. The decision in Re: S (Brussels II Revised: Enforcement of Contact Order) [2008] 2 FLR 1358 is distinguishable on the basis that the foreign order being sought to be enforced in that case had been made two years previously subsequent to which the mother and child had lawfully moved to an established habitual residence in the United Kingdom. Accordingly the primary original jurisdiction had passed under Articles 8 and 9 of Brussels II Revised to the United Kingdom. By contrast in this case the matter was concluded by the courts in Poland, some 5 months ago, on 5 June 2009 since when Zofia has failed to comply. If there is any jurisdiction in the courts in Northern Ireland as to the substance of the matter then I would stay proceedings in Northern Ireland under Article 15 of Brussels II revised.The alleged ambiguity of the Polish court order dated 6 May 2008
[39] The order dated 6 May 2008 assigns parental power over the children to Dominik. Zofia contends that it is unclear what is meant by "parental power" and furthermore that if it includes a power to decide the residence of the children that it conflicts with her parental authority to mutually agree on choice of schools. [40] I do not consider that there is any ambiguity in the order dated 6 May 2008. Parental power is assigned to Dominik. The parental authority of Zofia is limited. Her rights to mutually agree with Dominik on the choice of school is subservient to and not meant to undermine the exercise of other aspects of parental power which would naturally include where and with whom the children are to live. Dominik has decided that the children should reside with him in Poland. This interpretation is consistent with the rest of the order. Dominik bears the cost of keeping the children by means of services in kind. Zofia is to pay alimony towards their upkeep. That provision is only consistent with the children residing with Dominik. I hold that on the true construction of the Polish order the choice of school must be limited in practical terms to schools in the vicinity of the place in which Dominik, exercising his parental power, requires them to live and does not enable Zofia to entirely reverse the sense of the order by requiring them to attend school in Northern Ireland with the result that they have to live with her in Northern Ireland. [41] I am confirmed in that view by the expert report of a Polish lawyer which has been admitted in evidence for the purpose of this appeal. His advices include the following opinion:-"The father was entrusted with the exercise of the parental responsibility of the minors. It means he has full parental responsibility as it arises from the law. His rights and duties are only limited by the requirement to attain the mother's consent in the matters explicitly listed in the court order of 6 May 2009 (personal contents, the choice of school, profession, and means of medical treatment of the child)."[42] I reject the contention that the order of the Polish court dated 6 May 2008 is ambiguous. Accordingly it is not necessary for me to decide what steps could or ought to have been taken if I had considered that the order was ambiguous.
Welfare grounds in relation to recognition
[43] In an affidavit sworn on 10 October 2009 Zofia set out various welfare matters upon which she relied in support of her contention that the recognition of the order dated 6 May 2008 would be manifestly contrary to the public policy of the member state in which recognition is sought, taking into account the best interests of the child. In an affidavit dated 10 November 2009 Dominik joined issue with the majority if not all of the factual matters raised by Zofia. I do not intend to set out a list of all the various contentions. [44] In Re: S (Brussels II: Recognition: Best Interests of the Child) (No. 1) [2004] 1 FLR 571 Holman J thought that the order of which recognition was sought in that case was not an order which was in the child's best interest. In this case on the information before me, particularly bearing in mind the contents of the expert's report dated 17 April 2009, I conclude that the order of the Polish court was in the children's best interests. Even if I had not come to that conclusion I would have been quite unable to conclude that the order of the Polish court was so contrary to one or other or both the children's best interests that it would be actually contrary, let alone manifestly contrary, to some Northern Irish principle of public policy to enforce it.Conclusion in relation to the appeal against registration
[45] In arriving at a conclusion in relation to the appeal against registration of the order of the Polish court dated 6 May 2008 I have taken into consideration the views of the children in accordance with their age and maturity. I dismiss Zofia's appeal.Enforcement of the order of the Polish Court
[46] The appeal was heard on Friday 20 November 2009 and during the course of the hearing various suggestions were made by the parties as to how best to bring about the order of the Polish court. On Monday 23 November 2009 I indicated to the parties my decision dismissing the appeal and deciding to enforce the order of the Polish court. I also indicated to the parties that if either party wished I would proceed to give reasons orally or alternatively have my reasons prepared in the form of this written judgment to be delivered at a subsequent date. Neither party requested that the reasons be given on 23 November 2009. I then proceeded on 23 November 2009 with the assistance of counsel and taking into consideration the children's wishes and feelings, to finalise how best to bring about the order of the Polish court. [47] I required an undertaking from Dominik
(a) that he will collect both children in Northern Ireland and arrange and pay for the transport of the children and their belongings to Poland; and
(b) that he will afford Zofia contact, both direct and indirect with the children in Poland in the terms set out in a detailed schedule until such time as the appropriate court in Poland makes an order dealing with contact or the parties otherwise agree.
I ordered Zofia to return both the children to Dominik at a date and time that allowed them to finish their school term in Northern Ireland, to participate in some activities which had been arranged in Northern Ireland but to arrive in Poland in reasonable time before Christmas so that they could use their holiday to re-establish contact with their paternal family in Poland and to familiarise themselves with their surroundings before starting school in Poland. I also requested the Official Solicitor, and she agreed, to attend upon the children at Zofia's home as soon as practicable for the purpose of explaining to them the Court's decision and the consequences for them. In the meantime and until the Official solicitor had spoken to the children I prohibited both Zofia and Dominik from communicating the decision of the court to either of the children. I also prohibited Zofia from removing the children or causing them to be removed from Northern Ireland without the leave of the Court, save for the purpose of placing them in the care of Dominik. I had previously directed that the children's passports be lodged in court and I gave permission for those to be released to Dominik. I also directed the Official Solicitor to speak to Gavin about the steps to be taken to secure the children's return to Dominik. I requested Zofia's solicitor to contact Zofia's spiritual advisor once the children had been informed by the Official Solicitor of the decision of the Court so that he might give assistance to her and to the children. I placed an obligation on Zofia to inform the Court within 48 hours of how she proposes to affect the return of the children to Dominik and fixed a review hearing with liberty to apply in the meantime.
