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C v D [2013] EWHC 2989 (Fam)

Application by the father for the summary return of his son, brought to this jurisdiction from Spain by his mother. Defence under Art 13(b) of the Hague Convention raised. Application granted.

This was an application by a father for the summary return of the parties' child, E, to Spain, where the child had lived for the first three and a half years of his life.  The parents had separated and, although there was a dispute as to the facts of how E came to be in the mother's care, the mother had brought the child to England apparently without the consent of the father.

Shortly after her arrival in England, the mother sought and later obtained a residence order in respect of E.  In this judgment, Bodey J is critical of the county court for not having adhered to the obligation arising out of Article 16 of the Hague Convention to transfer proceedings to the High Court if there is evidence that the child was, or may have been, wrongfully removed or retained.

In these proceedings, the mother relied on the defence under Article 13(b), namely that:

"…there is a grave risk that [E's] return [to Spain] would expose him to physical or psychological harm or otherwise place him in an intolerable situation".

The mother contended that such harm would arise because she was at risk of prosecution in Spain for allegedly kidnapping E, which could render her unable to look after him, or because she would not be able to earn enough money in Spain to support herself and so E would be subjected to an intolerable situation.

As far as the alleged risk of prosecution was concerned, enquiries had confirmed that the previous criminal investigation of the mother in Spain had been 'archived'.  Furthermore, the court was of the view that if there were any further investigation, the interests of the child would be taken into account in any decision-making by the prosecuting authorities.

The mother's claim that she would experience financial difficulties if she were to return to Spain was again the subject of some factual dispute.   In any event, the father offered a number of undertakings to assist the mother to return to Spain, which included undertakings to provide financial assistance.  Although the mother raised doubts as to whether the father would honour these undertakings, the court found no evidence to support an assertion that he would not.

In this case, it was submitted on behalf of the mother that if the court were minded to order a return of the child, it should make a suspended return order pending the resolution of relocation proceedings in Spain, which the mother would commence forthwith.  However, Bodey J distinguished F v M and N (Abduction: Acquiescence: Settlement) [2008] 2 FLR 1270, a case in which a suspended order was made, because in that case the child, aged 6, had been in England for almost two years following a longer delay by the father in issuing his Hague Convention application.  Therefore the Article 12 'settlement' defence was clearly established and the court had a discretion about making a return order.  This was not an Article 12 case and there was no such discretion.

The mother also raised a concern about a potential delay in getting the case before the Spanish court.  Bodey J therefore indicated that he would refer the case to the office of Lady Justice Black with a view to requesting judicial cooperation to obtain an inter partes hearing quickly in Spain.

As the mother had not made out her Article 13(b) defence, the outcome of the case was an order for E to be returned to Spain.

Summary by Sally Gore, barrister, 14 Gray's Inn Square
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IN THE HIGH COURT OF JUSTICE No. FD13P01356
FAMILY DIVISION
2013 EWHC 2989 (Fam)

Royal Courts of Justice
Monday, 30th September 2013

Before:

MR. JUSTICE BODEY
(In Private)

B E T W E E N :

C Applicant

-  and  -

D Respondent
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Transcribed by BEVERLEY F. NUNNERY & CO
Official Shorthand Writers and Tape Transcribers
Quality House, Quality Court, Chancery Lane, London WC2A 1HP
Tel:  020 7831 5627    Fax:  020 7831 7737
info@beverleynunnery.com
__________

MISS J. RENTON instructed by The International Family Law Group LLP appeared on behalf of the Applicant.
MISS S. L. COOPER
instructed by Brains Solicitors appeared on behalf of the Respondent.
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J U D G M E N T
(Approved)

MR. JUSTICE BODEY:
A.
 Introductory
1. These are Hague Convention proceedings in relation to a little boy,  E, who was born on 3rd July 2009 and is therefore now 4.  They are brought by his father, C ("the father") against E's mother D ("the mother") by a notice dated 24th July 2013.  The father, who lives in Spain, seeks an order for the summary return of E to that jurisdiction.  This is strongly resisted by the mother who is living with E within the jurisdiction of England and Wales.  The only defence now relied upon by her is that set out in Article 13b of the Convention, namely that:

"…there is a grave risk that [E's] return [to Spain] would expose him to physical or psychological harm or otherwise place him in an intolerable situation".

There are two particular limbs to this:  first, that the mother might be prosecuted in Spain for having (allegedly) kidnapped E and might thus be detained and unable to care for him; and, second, that her financial circumstances in Spain would be so parlous that E would be subjected to an intolerable situation.

2. The father has been represented by Miss Renton and the mother by Miss Cooper, each of whom has presented written and oral submissions which I have carefully considered.  Each has said all that could be said in support of her respective client.

B. Short background
3. Both parties are British and were born in England.  The father is now aged 47 and is a self-employed builder.  The mother is aged 33 and has worked quite extensively in bars and restaurants in Spain.  The father says that she is also a qualified beautician, an assertion which I do not think has been denied by her or on her behalf.  She is presently working in this country as some sort of photographer.

4. The parties met in Spain in about 2000 and cohabited there together for 12 years until autumn 2012.  During that time E was born on 3rd July 2009 in Spain, where he lived for the first three and a half years of life.

5. Unhappily the relationship failed amidst mutual recrimination and cross-allegation, each accusing the other, amongst many other things, of being volatile and aggressive.  Things came to a head in August 2012 when the mother left the family home in Spain, leaving E with the father.  She says she was forced out by the father's violent and controlling behaviour.  The father says that she left because she wanted to leave, having begun to stay out to the early hours of the morning and (he says) seeing other men.  For a period of time the father cared for E until the mother took E back (the father says by force).  Thereafter the mother began to care for E at a flat near the family home in Spain which she had begun to rent, until the father took E back off her (she says) by force.  So it was that on 23rd October 2012 the mother went to the family home with her father to try to retrieve E.  On the mother's case there was a huge row in which the father lost his temper and shouted at her, "You can both live where the fucking hell you like", whereupon she left with her father and E.  The father's case, on the other hand, is that the mother simply grabbed E and managed to get away in her car, almost knocking him (the father) down and running over his foot shouting, "Fuck you".

6. It would be as impossible as it would be inappropriate to resolve these factual issues at this summary hearing, and I mention them only as an indication of the sort of disputes which might have to be resolved by whichever court, in whichever jurisdiction, came to conduct any full welfare hearing about E's future.  I should add that each parent seeks the residence of E.  The mother's case is that she has always been his primary carer.  The father's case is that he shared E's care with the mother during the parties' happier times before the separation and was actually caring for him at the time when (as he says) the mother abducted him.

7. Having successfully brought E away from the family home on 23rd October 2012, the mother came with him straight from Spain to England on the 24th and moved to her father's home in the West Country.  She says that she had been advised that she could do so by the Spanish police and a Spanish solicitor.  The Spanish solicitor has stated in a letter, dated, 17th December 2012:  "… that it was perfectly legal for [the mother] to bring E back to the UK, particularly as the threat from [the father] to take E by force was making [the mother] very afraid".  That was dubious if not wrong advice since, as appears below, the mother took E from Spain without having the father's consent.  As it has turned out, the father has not seen E since 23rd October 2012, nearly a year, except by Skype.

8. On 5th November 2012, shortly after getting to England, the mother applied for a residence order from her local County Court in the West Country ("the County Court").  The application was served on the father in Spain.  He put in a strong written response, including that:  "… my solicitor's opinion is that E has been removed from Spain illegally because he was taken out of Spain without my permission … and I am convinced [E's] interests would best be served by this case being heard in the Spanish courts".  He subsequently made a formal complaint to the Spanish police on 30th November 2012 to the same effect, that E had been removed to England without his consent.  The father sent a second statement to the County Court on 23rd January 2013 referring to the mother's having "snatched E and abducted him from Spain".  His stated plea to the County Court judge was:  "… I am asking you to have E returned to Spain where he was born [and to] his habitual home where his friends are [and] his school is, where he was obviously learning to speak fluent Spanish".  The CAFCASS report to the County Court, under the private law programme, stated:

"… It would appear that E has been removed from Spain without the consent of [the father] …".

9. On 8th February 2013 the mother's application for residence came before the judge at the County Court.  The father, although served, did not attend the hearing as he was in Spain.  It was noted in the preamble to the court's order that there was no evidence that the mother's removal of E from Spain had constituted any offence under Spanish or English law, and that E had now resided in England for a period in excess of 3 months (since October 2012).  Under those, and other, preambles the judge made a residence order in the mother's favour.  In the short term this was no doubt a comfort to her, regularising E's position here; but in the longer term it has led to what I accept is much upset and anxiety for her following the start of this Hague application, when she had thought that E had a secure status with her in this country.

It is worth repeating Article 16 of the Convention which says:

"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".

In Re H [2000] 2 FLR 294 Mr Justice Holman . spoke in trenchant terms about the duty of the court to be alert to this provision and to transfer the case to the High Court of Justice if in any doubt.  He spoke of 'alarm bells ringing'.  This and other authorities cited by him in that case have led to a note in the Family Court Practice 2013 at p.448 as follows:

"Where the court becomes seised of a matter relating to a child and it becomes apparent that there has been wrongful removal or retention within the meaning of the Convention, the court has a duty to take steps to secure that the parent in the other state is informed of his rights under the Convention.  The English central authority should be requested to inform the central authority of the state from which the child has been removed of the circumstances of the case.  The court should also communicate with the parent in that state by means of directions to the effect that he should seek legal advice expeditiously as to his rights and communicate with the central authority of his state of which he should be given the name and address".

Accordingly, faced with the clear evidence that this was or may have been a wrongful removal from Spain, it was incumbent on the County Court to be proactive in seeing that the obvious issue was expeditiously resolved.  This should have been done by a transfer to the High Court for directions on notice to the father; or at the very least the judge's order should have contained a preamble bringing the existence of the Hague Convention clearly to the father's notice so that he could swiftly avail himself of it if so advised.  Nor should the court have granted the mother a residence order in the face of Article 16, although it would have been quite in order to have 'held the fort' by an injunction forbidding the father from removing E from the jurisdiction of this court or from the mother's care without the permission of the court.

10. That said, the order was made as it was made and time went on.  The father was unaware of the Hague Convention and thought he had done all he could do, having made his complaint to the Spanish authorities and to the English County Court.  It was not until the summer of 2013 that he found out about the Hague Convention and started the wheels in motion leading to this contested hearing.

11. On 8th August 2013 the first 'inter partes' hearing came before King J.  Her order contains a preamble that the mother's defence would be 'solely on the basis' (a) that the father did not have rights of custody in respect of E and (b) that the father had consented to E's removal or (c) that the father had acquiesced in E's being retained in England.

12. Subsequently at a directions hearing before Mr Justice Mostyn on 4th September 2013, the mother (having changed counsel) made clear that she now wished to rely on Article 13b (the harm defence referred to at para.1 above).  She was given permission to file a third statement to support that case.  The judge gave a provisional indication that the defences on consent and acquiescence appeared weak. The assertion that the father did not have rights of custody was not, and has not been, pursued.

C. The defences of consent and acquiescence
13. At the start of this hearing, in my view rightly, the mother abandoned her defences of consent and acquiescence.  Even taking her case at the highest, there was no sufficient evidence of a clear and unequivocal consent.  As for acquiescence, such a case was completely hopeless given the various email communications from the father to the mother during 2013, repeatedly expressing his wish for E to be brought back to Spain.  For example, on 15th January 2013:  "I want E returned to his home.  Just because you left it does not mean you had to drag him away as well";  on 28th February 2013:  "You need to come back to where you lived for the past 12 years and bring E to where he was born and deal with it in the local courts";  and on 20th April 2013:  "…come back to Spain where our son was born and you saw fit to have a child, then we can discuss at a court of law with a judge about custody and money".  It is difficult to think of anything much further away from acquiescence.

D. Article 13b 'harm':  the risk of prosecution
14. I turn to the two limbs of the Article 13b (harm) defence as referred to above.  Taking first the question of a possible prosecution in Spain for the offence of child abduction, I have already mentioned the fact of the father's complaint to the Spanish police in November 2012.  That is now some 10 months old.  Enquiries have been made by Spanish solicitors, instructed by or on behalf of the mother, of the three courts in the town near which the parties lived in Spain.  Those solicitors report a conversation with the official in charge of the case in 'Court No.1', who told them that the father's complaint had been archived in May 2013, as the court considered there was "insufficient proof that a crime had been committed".  The solicitors report that 'Court No.2' confirmed that they had dealt with an earlier complaint made by the father against the mother on 24th October 2012 also regarding E's removal to this country, "… and likewise the matter has been archived".   The third court confirmed that it currently has two civil actions in respect of the care and custody of E, although details are not provided of them and they are anyway not relevant to the risk of prosecution.

15. Miss Cooper refers me to Re L (Abduction: Pending criminal proceedings) [1999] 1 FLR 433, where there were extant extradition proceedings against the mother brought by the American authorities.  Mr Justice Wilson , as he then was, spoke of his 'not pretending to relish the prospective scene at the US airport upon the arrival of the mother and the children', as the evidence was that the mother could be arrested, shackled, incarcerated and taken before a judge.  On that basis it had been submitted to him for the mother that, unless the US prosecuting authorities in Florida confirmed to the English court that there would be no arrest prosecution or imprisonment if the mother and children were to return, then the children would be at grave risk of physical or psychological harm under Article 13b.  But Mr Justice Wilson did not accept that submission.  He did accept it was entirely predictable that criminal proceedings would be launched in Florida but continued: 

"… there is no reason to think that, when deciding whether to continue with the prosecution following any return of the mother and children, the state prosecutor would exclude consideration of the interests of the children; nor that in deciding whether to grant bail or, in the event of conviction, whether to sentence the mother to any term of imprisonment the Floridian judge would fail to pay significant regard to their interests".

In my judgment, the same applies here, particularly in the light of the evidence that the criminal cases against the mother have been archived.  The father is undertaking not to support any prosecution of the mother in respect of E's wrongful removal (such as it is now accepted by the mother to have been) and it must be much less likely than likely that the mother would find herself in difficulty with the criminal authorities on any return to Spain.

E. Article 13b 'harm': financial
16. The second limb of the mother's Article 13b 'harm' defence is that of the financial difficulties which she says she would have in Spain.  Here again there are substantial disputes of fact between the parties.  The father says that the mother worked for years in Spain and never had any difficulty in doing so.  She agrees she has conversational Spanish.  He says that such individuals are in high demand.  She says it is unlikely that she will find any work especially as the season is coming to an end.  He claims that her father is wealthy and even has his own aeroplane.  It is common ground that her father was helping her financially in Spain after the separation in August 2012, although the mother says that his (her father's) money has now run out.  She denies that her father has his own aeroplane.  In their respective statements, the father says that the mother can get social security benefits in Spain while she says she cannot.  He says that flats can be obtained for €200 a month.  She says not and points out that her flat, after the separation, cost €260 per month.  Information produced to me since the hearing suggests that the mother would indeed need to work in Spain for a year, unless she had made contributions in Spain whilst working there over the years (about which there is no evidence) before being entitled to Spanish unemployment benefit.  It seems that she could 'export' her UK child benefit, but that it would come to an end if she started formal work in Spain.  As to flats, the information produced since the hearing shows a range of flats starting at €175 per month and rising to €325 or €360 per month (the latter two having pools).  In these summary proceedings I have to do the best I can by looking through this peephole at the reality of life in Spain.

17. As conventionally happens in such circumstances as these, the father has made some proposals to make the child's return to the country of habitual residence easier, or less difficult, for the mother.  In his statement, dated 20th September 2013, answering the mother's recently raised Article 13b harm defence, he offered undertakings as follows:  An undertaking without admission not to be violent to the mother nor to harass her;  an undertaking not to initiate nor support any criminal proceedings in Spain (discussed above);  and an undertaking to pay for E's one-way economy flight ticket to Spain.  On the morning of the hearing these were augmented, through Miss Renton, by further undertakings as follows, namely:  To pay €200 per month maintenance until the first 'inter partes' hearing in Spain;  to pay the deposit on a flat for the mother and E and to pay for the first month's rent on such flat up to €200 per month.  That has since been increased, at my suggestion to, €250 per month.  It transpired during submissions that the father had in mind the mother living in the town near to the family home; whereas if she was sent back to Spain she would not be prepared to do so.  She says that if she is going to need to provide financially for herself and E then she needs to be on the coast, where there is more work.  The town she has in mind is some distance away from the family home.  The father says it is two hours' drive away.  The mother says it is more like 40 minutes to an hour away.  When this disagreement as to where the mother and E would be living emerged, the father reduced his maintenance offer by €80 a month to €120 per month so as to cover his fuel for driving to and from contact.  On the other hand, he extended his undertaking for flat rental to run until the first inter partes hearing in Spain.  He further offers upfront the first months' worth of rent and maintenance.

18. The mother would obviously be looking for more generous financial support if she has to go back to Spain.  On the other hand, the father says he is just a small-time builder and not a man of any means.  Clearly these cases cannot become quasi maintenance applications and there is understandably no evidence as to the means of any of the relevant adults, the mother, the father nor her father.  That said, it does look as though the mother would be able to find some sort of work to fit round her responsibilities to E, who it is probable would be in some little school, so as to augment the income on offer from the father until the Spanish court became seised of the issues.  This is not the sort of situation of destitution and homelessness alluded to in Re M (Abduction:  Undertakings) [1995] 1 FLR 1021, to which Miss Cooper has referred me.  In that case the ' left behind' father had placed his lawyers in funds for the deposit on a flat for the mother and children, for the first month's rent and for the first month's child maintenance.  The Court of Appeal concluded that there was enough money available to keep the family '… with a roof over its head for that limited period with which the English court is concerned".  I am of the same view, on balance, about the father's proposals in this case and I find them to be sufficient.

19. Miss Cooper, however, relies on a further concern, namely as to whether the father can be trusted actually to honour his promises.  She refers me to C v C [2003] SLT 793 as an example of where a court (the Outer House in Scotland) refused to accept that the father would comply with his financial undertakings.  However, that case turned on very particular facts as the father there had a criminal record of dishonesty, had gone under an assumed name and used a false social security number, had failed to stay in regular employment and had run up maintenance arrears of $16,000 regarding a previous child.  There is nothing like that in this case.  Instead the ground relied on by Miss Cooper for suggesting that the father may not honour his promises is the fact that they were not volunteered in his statement a few days ago but only emerged at the outset of this hearing.  The only other point which could be taken against the father is that he has not apparently paid any maintenance for E since October 2012, but there is no suggestion that he has thereby broken any promise that he would do so.  I cannot see in such circumstances sufficient justification to reject the father's undertakings, given that he will be aware (as must be made very clear to him) that if he did break them, the Spanish court would surely take it into account against him when considering welfare issues about E in due course.

20. Last on this topic, Miss Cooper raises the further concern that if I am proved wrong in accepting the father's financial undertakings, then there would be no way that the Spanish court would enforce them since that court does not recognise the concept of an undertaking. To rebut this Miss Renton refers me to Re Y (Abduction: Undertakings given for return of child) [2013] 2 FLR 649 [CA].  That is apparently the first case here to consider Article 23 of the Hague Convention 1996, which states (subject to certain exceptions which do not appear to apply here) that:

"… the measures taken by the authorities of a Contracting State shall be recognised by operation of law in all other Contracting States".

Thorpe LJ rejected a submission that undertakings would not be enforced in Cyprus unless they were converted into English court orders, holding that:

"… The whole purpose of the Hague Child Protection Convention was to support and supplement the effective operation of its parent, the Hague Convention, insofar as undertakings were widely used for the expression of protective measures in the early years of the development of the Hague Convention".

Miss Cooper responds that Re Y is all very well but it (plainly) does not bind the Spanish court and she asks me not to second guess that court's interpretation of Article 23.  She takes me in particular to a letter of 16th September 2013 from De Cotta Law, a firm of Spanish solicitors instructed by the mother, who give an opinion that undertakings would not be 'executed before the Spanish courts'.  They say that for such undertakings to be enforceable in Spain the English court would have to order the father specifically to comply with them. Mr Justice Mostyn, however, directed on 4th September that any such evidence from Spanish solicitors was not to stand as expert evidence and, in any event, De Cotta Law do not give any explanation as to why they consider that undertakings to this court would not now be held in Spain to constitute 'measures' under Article 23.  I can only say that it is difficult to see any logical reason why a foreign court, reading in context an order of this court which included undertakings, should decide that those undertakings were not 'measures', particularly if a preamble were put in the order making it clear to the foreign court that this court regards the undertakings in question as essential 'measures' to smooth the process of return.

21. Miss Renton submitted that there are, three safeguards for the mother as regards the enforceability in Spain of undertakings given to this court:  first, Article 23 depending on the Spanish court's interpretation of it in practice;  second, the fact that this court could order the father to comply with his undertakings, which De Cotta Law say would render them enforceable in Spain;  and, third, that the mother could obtain a Spanish order incorporating the guts of this court's order.  I accept that submission.  In such circumstances, one way or the other, it is reasonably likely at least that the mother would be able to secure enforcement through the Spanish court should that in fact be necessary.

F. E's welfare
22. There are three further points which I need to mention.  First, there was reference, both in Miss Cooper's written presentation and in her oral submissions, to the court having to consider under the Hague Convention not only the welfare of children generally but also that of the individual child, E.  She relied on Re E (Children: Abduction: Custody appeal) [2011] 2 FLR 758 [Supreme Court] where there are indeed references to the need to consider the best interests of the individual child (see, for example, at para.14).  This was, however, in the context of the Supreme Court's reconciling (a) the requirements of the Hague Convention with (b) Article 8 of the European Convention for the Protection of Human Rights and Article 13(1) of the UNCRC (providing that in all actions concerning children the best interests of the child shall be a primary consideration).  I initially understood Miss Cooper to be submitting that E's welfare in not being uprooted from the West Country, where he has become settled and is happy, is something to be taken into account in some sort of overarching way when applying the provisions of the Hague Convention.  However, in debate between us it became clear enough that she was merely stressing the need to look to E's welfare as part of the proper application of the terms of Article 13b of the Hague Convention. The welfare of the individual child is manifestly taken fully into account when deciding, under that Article, whether there is a grave risk of physical or psychological harm, or whether the child would otherwise be placed in an intolerable situation. But if that Article 13b threshold, which has repeatedly been called a high one, is not reached then (leaving aside Article 12) there is no room for the welfare of the child to 'trump' a return order.  Otherwise the thinking and policy behind the Hague Convention, discussed in many cases including Re E, would be nullified.  The situation is different where Article 12 is made out because there the fact of the child's 'settlement' gives the court a discretion in which his or her welfare would play a very major part.  But Article 12 sets its own time limit for 'settlement' viz. that the child has been in the receiving country for 12 months before issue of the Hague proceedings.  That does not apply in this case, as E was brought here in October 2012 and the father issued proceedings in July 2013.  There is no mandate, therefore, to take account of E's welfare outside of the context of deciding whether or not the mother's Article 13b defences are established, even on the premise that such welfare might be better served by his now staying where he is.

G. A suspended return order to permit a relocation application in Spain
23. Second, Miss Cooper made a suggestion that I could and should permit the mother to remain in this country with E pending the resolution of relocation proceedings in Spain, such to be on the basis that the mother would start such proceedings forthwith; would agree that the Spanish court has jurisdiction; would agree to return E to Spain if the Spanish court so required;  would attend all hearings in Spain;  and would allow the father generous staying contact in the meantime.  In F v M and N (Abduction: Acquiescence: Settlement) [2008] 2 FLR 1270  Mrs Justice Black, as she then was, made an order for a summary return to Poland suspended to allow the mother time to issue an application in that jurisdiction for permission to relocate the child to England.  There, however, the child, aged 6, had been living in England for almost two years, having been brought here from Poland by her mother in May 2006, with the father's Hague application not being issued until March 2008 So the Article 12 'settlement' defence was clearly established and Mrs Justice Black was therefore in the realms of the exercise of discretion about making a return order.  That, to repeat, is not the position here and, in my judgment, there is no option of giving the mother time to apply to the Spanish court.  The wording of Article 12 is mandatory, that '…where a child has been wrongfully removed or retained in terms in Article 3 … the authority concerned shall order the return of the child forthwith'.  To give the mother a suspension of the sort of time which she would be likely to need would (again) be to undermine the purpose and proper application of the Hague Convention.

H. Getting the case before the Spanish court
24. Third, Miss Cooper expresses concern about the time it may take to get this case before the Spanish court.  De Cotta Law, in their 'non-expert' letter of 16th September 2013, speak of such a case taking anywhere between 4 and 12 months (presumably to final hearing).  They say that there may be 'a possibility of requesting a provisional order requesting that the minor resides provisionally in England until the definitive order is obtained and in theory this provisional order could be obtained in 2 to 3 months depending on the court'.  But they say they would be unable to guarantee this timeframe.  I recognise that there is always the risk in high emotion cases, as this case seems to be, of things blowing up such that there is a need to get before a court quickly, more quickly than 2 to 3 months, if that is really the time an urgent application in Spain might take.  I will, therefore, as suggested by Miss Cooper, refer this case to the office of Lady Justice Black, now the judge in charge of international affairs, with a request for such judicial cooperation as to a speedy interim inter partes hearing in Spain (if one is sought) as the Spanish liaison judge feels able to arrange.

I. Outcome
25. For the above reasons, I find that the mother has not made out her Article 13b harm defence in any respect.  I am fortified in that conclusion by the late arrival on the scene of her reliance on that defence, as above.  In spite of Miss Cooper's valiant efforts, there is no other valid basis for refusing the father's application. Accordingly and not without sympathy for the mother, given the history of her bringing E here and securing a residence order, he must be returned to Spain.  The parties should now do their utmost to resolve issues about his future based on his best interests, failing which it would be for the Spanish courts to deal with such issues.
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