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X, Y And Z (Children) (Retrospective Leave To Remove From the Jurisdiction) [2016] EWHC 2439 (Fam)

High Court elects to exercise jurisdiction under the Children Act 1989 to consider a mother’s application for retrospective permission to remove the children from the jurisdiction to Spain, without need for enforcement of an order for return under the Hague Convention, in the context of significant delay.

These proceedings concerned three children, X, Y and Z, whose mother relocated the children to Spain in March 2013, along with a half or full sibling A, and without the consent of their father. The father was unaware of the family's location at this time and contacted UK police in May 2013 to report his suspicion that the mother intended to leave the jurisdiction. At a hearing without notice to the mother on 10th May 2013, the court ordered the mother to surrender the children's passports and prohibited her from removing them from England and Wales. This order was not personally served on the mother in the UK and the mother failed to attend the return date on 24th May nor further hearing dates in June and August.

On 11th September 2013, the father's solicitors submitted an application to the ICACU who confirmed it had been submitted to the Spanish Central Authority. This application was issued in February 2014, and on 25th April 2014 the Court of First Instance in Spain ordered the return of X, Y and Z to the UK under the Hague Convention, after hearing submissions from the mother. The mother unsuccessfully appealed this order, following which in September 2015 the Court of First Instance in Spain ordered enforcement of the return order. The mother did not comply with its terms and, inter alia, issued an application in the English courts in February 2016 for retrospective leave to remove the children temporarily to Spain and permission for permanent relocation.

The court was asked to consider whether or not to exercise its jurisdiction under the Children Act 1989 in respect of the mother's application. Finding that it should, Judge Meston QC (sitting as a Deputy High Court Judge) concluded that:

(i) The English court retained jurisdiction in a case of child abduction pursuant to Article 10 of Council Regulation (EC) No 2201/2003(Brussels IIA) (para 46).

(ii) In the circumstances of this case, the court should and would not insist upon the compliance with the orders of the Spanish courts as a precondition of the exercise of its jurisdiction under the Children Act 1989. The court was required to balance various important factors in this decision, including the obligation to uphold the principles of the Hague Convention and support orders for return, the right of the mother to access the English court which alone had jurisdiction in this matter and her right to a hearing, the rights of the children and each parent to respect for their family life and the rights of the children to be heard and have their views considered (para 44). Referring to Roderic Wood J's judgment in Re LC (Habitual Residence: Grave Risk of Harm) [2014] EWFC 8 (Fam), however it was not sufficient nor in the children's interests for this court to do no more than stay the mother's application and allow the uncertain process of enforcement of the Spanish Convention order to continue (paras 45-46).

(iii) As such, further consideration of this matter would occur as a expeditiously as possible in the English courts (para 46).

Consequential directions were made, joining the children as parties to the application and appointing a Guardian.

Summary by Anita Rao, barrister, Field Court Chambers
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Neutral Citation Number: [2016] EWHC 2439 (Fam)
Case number omitted

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
SITTING IN BOURNEMOUTH


Date: 31st August 2016


Before :

His Honour Judge Meston QC
sitting as a Deputy Judge of the High Court
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In the matter of X, Y and Z (children) (Retrospective Leave to Remove from the Jurisdiction)
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Miss Katherine Dunseath (instructed by Ellis Jones solicitors) for the applicant mother
The respondent father was in person

Hearing date: 16 September 2016
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Approved Judgment
Judge Meston QC:

Introduction.
1. These proceedings concern three children, X (aged 10), Y (aged 8) and Z (aged 6).

2. This judgment follows a hearing to determine whether or not the court should exercise jurisdiction under the Children Act 1989 in respect of an application by the mother for retrospective leave to remove the children temporarily to Spain and also for permission to relocate the children permanently in Spain. In effect, the mother seeks approval of the court to retain the children in Spain where they have lived since about March 2013. The father has remained in England without any contact with the children. If it is decided that the court should exercise jurisdiction, important questions arise as to the manner in which it should be exercised and the practical steps required to effect a proper hearing.

Background.
3. Although both parents have been legally represented in these proceedings and in earlier proceedings, there have been changes of solicitors and their most recent representatives may have been hampered by incomplete knowledge of the earlier proceedings.  I have gathered some background information from the relevant previous court files.

4. The mother and the father were married in January 2006 and the father has parental responsibility for each of the 3 children. The mother has an older child, A, who is now 13 years old. There is said to be a dispute as to whether or not the father is actually the father of A.  As far as I am aware, the parents are UK citizens and the children were born and brought up in England. According to the mother, the father was violent towards her and the children during the marriage, and the parents' relationship ended in early 2013.

5. By an application issued in June 2011 on behalf of the mother she sought a residence order and a prohibited steps order under the Children Act 1989. The mother also applied for an order or orders under Part IV of the Family Law Act 1996. The mother's statement in support dated 10th June 2011 did not suggest that the father was not, or might not be, the father of A.  In that statement she alleged that the father was violent and threatening towards her. The mother said that the father had also lost his temper and assaulted X on 31st May 2011 as a result of which she (the mother) had locked him out of the house and called the police. It was also said in her application that the children were known to social services and were subject to a child protection plan. On 10th June 2011 the court made a non-molestation order without notice to the father, but on the return hearing date on 16th June 2011 the father appeared and it was recorded that the mother wished to withdraw the proceedings. The non-molestation order was then discharged. In the concurrent Children Act proceedings the court made a prohibited steps order on 10th June 2011 preventing the father from removing the children from the care of the mother and listed the case for another hearing on 1st July 2011.  A subsequent letter to the court from CAFCASS of 23rd June 2011 confirmed the involvement of the local authority since 2008. The letter from CAFCASS also said that the mother wished to withdraw her application but suggested that the court might wish to gain further information before allowing the application to be withdrawn. Accordingly, on 1st July 2011 the court directed an investigation and report by the local authority under section 37 of the Children Act 1989. The report of 25th August 2011 showed the parents to have reconciled. The local authority proposed continuation of the child protection plans. No further court orders were then made.

6. In March 2013, when the parents' relationship finally ended, the mother took the children to Spain without the father's knowledge or agreement. They have remained in Spain since then.

7. The father apparently suspected that the children had been taken, or were about to be taken, to the maternal grandparents' property in Spain for the Easter holidays (as was usual); but he did not then know whether they had actually gone or that they had been retained there.  On 9th May 2013 he contacted the police because he believed that the mother was planning to leave the country with the children.  He also instructed solicitors and by an application issued on his behalf on 10th May 2013 he sought a prohibited steps order to prevent the removal of the children.  In a supporting statement of 9th May 2013 he said that he and the mother had separated on 18th March 2013 since when he had not seen her or the children.  His solicitor had written to the mother on 2nd April 2013 about contact and learned that the mother opposed contact and refused mediation.  His solicitor had written to her again on 15th April 2013 and she had telephoned the solicitor on 16th April 2013 when she said that they were not in Spain and that the children had started school again. However, the school then informed the father's solicitors that they were not there.

8. On 10th May 2013, at a hearing without notice to the mother, the court ordered the mother to surrender the children's passports and prohibited her from removing the children from England and Wales. On 20th May 2013 the process server went to the home of the mother's mother and was told by the mother's mother that the mother and children had moved to another (named) county. The mother's mother thereupon contacted the mother by telephone which she then passed to the process server. The process server told the mother of the orders which had been made and of the return hearing date.  The process server asked the mother for her address which she refused to give, and so he then left the documents with her mother.

9. At the next hearing on 24th May 2013 the mother did not attend and was not represented. The court ordered the Department of Social Security (sic) to disclose the children's address and directed CAFCASS to carry out their safeguarding checks. The Department of Work and Pensions responded with a list of addresses, the most recent was that of the maternal grandmother. None were in the county which had been named by the grandmother.

10. CAFCASS provided a 'schedule 2' letter to the court dated 4th June 2013. This recorded the information about the family obtained from the local authorities and police.

11. At the next hearing on 21st June 2013, which again the mother did not attend, the district judge adjourned the case until 2nd August 2013. The note of the district judge on the court file recorded that the father believed that the mother was in Spain but was returning soon. The mother did not attend the next hearing listed on 2nd August 2013.

12. The father's solicitor completed and submitted an application on behalf of the father to the International Child Abduction & Contact Unit (ICACU) who acknowledged it by letter dated 11th September 2013. In that letter ICACU told the father's solicitor that an application had been submitted to the Central Authority in Spain.  ICACU also wrote in that letter:

"The speed and manner in which your case is conducted from this point is entirely dependent upon the internal procedures in Spain."

13. There was no further progress in the father's application to the English Court.

14. On 10th February 2014 an application to the court in Spain made on behalf of the father under the Hague Convention was issued. It is not clear why it had taken until February 2014 for that application to be made, the application by ICACU to the Spanish authority having been made in September 2013.

15. The mother had proper notice of that application and she participated in the Spanish proceedings in which she was legally represented. She unsuccessfully raised an Article 13 (b) 'defence'.

16. On 25th April 2014 the Court of First Instance in Spain ordered the return of the 3 children to the father, the judge holding that:

"… this is a clear case of unlawful removal, a typical example of "fleeing jurisdiction" in which the mother removes the children to Spain without the consent of the father, refusing to appear before the English court on numerous occasions, when it is before this very judicial authority that the respondent should assert her allegations concerning the suitability of the father to fulfil parental functions. The path followed, which consists in converting this procedure for return into a child custody procedure, is clearly improper as such an approach compromises the substance and purpose of the Hague Convention of 1980 and Council Regulation (EC) 2201/2003, which is precisely to decide upon the return of the child to the jurisdiction of the Court from which he or she has been removed, in order to allow that Court to decide upon the basic issue of the acrimonious and conflictive dispute between the parents over the custody of the child, something which the Spanish courts are not empowered to do."

17. The court ordered the Spanish Central Authority to send a transcript of the ruling to the English County Court in case it was "deemed necessary to adopt protective measures for the children" in view of the mother's allegations. It does not appear that the transcript was in fact received.

18. The mother was ordered by the Spanish Court to pay the travel costs of the father in respect of the return unless the mother returned voluntarily to Great Britain to hand them over there.

19. In June 2014 a divorce petition was issued by, or on behalf of, the mother in Wales.   It stated an address for her in England and pleaded that she was habitually resident in England and Wales and (quite incorrectly) that there were no other proceedings in England and Wales or elsewhere in respect of any child of the family. It is not clear why the petition was issued in Wales.

20. The mother lodged an appeal against the order for return in Spain. It is likely that her appeal was lodged in May 2014 – because the order of the court at first instance pointed out that an appeal could be presented within 20 working days and because the subsequent decision of the appeal court recorded that the appeal had been lodged in time.

21. The appeal was not determined until some 10 months later. On 20th March 2015 the Provincial Court in Spain dismissed the mother's appeal against the order for return of the children. This appears to have been a decision reached without an oral hearing. The reasons for dismissal of the appeal were that there was no evidence of risk of harm to the children and there was what was described as a "judicial protection order" issued by the English court on 24th May 2013. The Provincial Court appears to have been referring to the order made in the proceedings in England on 24th May 2013 when the court directed CAFCASS to complete their safeguarding checks to include a level 2 police check. The Provincial Court and the Court of First Instance both deemed that to be a protective measure within the meaning of article 11.4 of Brussels IIA.

22. On 10th September 2015 the Court of First Instance in Spain ordered enforcement of the return order and directed issue of an official letter to the Spanish police to advise of the location of the children.

23. On the following day, 11th September 2015, the Court of First Instance ordered the mother to return the children to the father within one month.

24. The father travelled to Spain in December 2015 after arrangements had been made by the Spanish authorities for him to collect the children, but the children were not produced for collection.

25. On 3rd December 2015 the Court of First Instance, having been advised by the Department of Justice that the mother and children had disappeared from their place of residence, made an order prohibiting removal of the children from Spain and prohibiting the issue of passports.

26. On 10th December 2015 the Court of First Instance directed that the order of 3rd December should be sent to the police for measures to be taken to locate the children.

27. Following a request from the Public Prosecutor in February 2016, on 4th March 2016 the Spanish Court authorised presentation of evidence to the Public Prosecutor's Office to ascertain whether the facts constituted an offence.

28. On 28th March 2016 an application by the mother made in Spain for custody of the children was rejected by another Court of First Instance "due to lack of international jurisdiction".

29. On 1st July 2016 that Court of First Instance authorised the temporary removal of the passports of X and Z and directed that they should be place with the court. The court also authorised that X and Z should be brought before the court "in order to comply with the decisions handed down in its Compulsory Enforcement Proceedings", and that official communication was to be made to the security forces so that they might formally request compliance by the mother. It is not clear why Y was not referred to in that order.

The current proceedings.
30. The current application by the mother before the Family Court in England dated 20th June 2016, was issued on 21st June 2016 through solicitors on her behalf. It stated that the mother was habitually resident in Spain and that the children had been living in Spain since March 2013 "despite Orders for their return". The application sought permission for the mother not to attend the first hearing and asked for a separate waiting room if she was ordered to attend.

31. Accompanying the mother's application was a supplemental information form [C1A] in which it was stated that the mother had removed the children from England as a result of domestic violence. Reference was made to the mother's witness statement which also accompanied the application. This statement alleged repeated violence on the part of the father from 2007 until 28th February 2013, the last incident resulting in the father pleading guilty to assault in March 2014 and receiving a conditional discharge. [The evidence on the court file from 2013 suggests that the incident was in fact on 18th March 2013 and the conditional discharge was on 9th April 2013]. She did not give an account of the earlier proceedings in England in 2011 and 2013.

32.  The mother stated that her only option had been to take the children for refuge in her mother's home in Spain where she said that they have settled well.

33. The mother gave an account of the proceedings in Spain and stated her view that the legal process in Spain had been flawed and that the return should not have been ordered. She said that she was faced with a situation where she would have "had to try to force 3 of her 4 children the return to England" and to "decide which of them [she] should stay with". She said that she had completely lost faith in the legal system given that she had produced clear documentation of the abuse suffered by the children and herself at the hands of the father. She said that although she knew it was wrong to breach the order she felt she had no choice and so decided to remain in Spain with the children. She did not think that the father would actively pursue their return and she felt that he would accept the children did not wish to see him. Having failed in her application in early 2016 for an order for custody from the Court in Spain, she had taken advice from her solicitors in England and on that advice she was seeking permission of the English court for permission to relocate the children to Spain including retrospective permission for temporary leave to remove the children until conclusion of the English proceedings.

34. In support of her application for temporary leave the mother asked the court to consider the following:

i. The children have been living in Spain for over 3 years and are settled and happy.

ii. The order for return relates only to the 3 youngest children. A will not return, and therefore refusal of her application would cause a sibling split.

iii. If matters were expedited a decision could be made within 4-5 months. Refusal of her application for temporary leave would mean the children changing their schools and country of residence twice if her application for permanent leave subsequently succeeded.

iv. She remained of the view that she and the children would not be safe in England. She expected the father to be very angry with her and she feared for their safety if he knew of their whereabouts. She believed that he would attempt to remove the children from her care and would then refuse to disclose their whereabouts.

v. In her view there was no benefit to the children if they were returned to England in the short term in that it would not be safe to order direct contact of any sort without a full enquiry, and in any event the children would refuse to have contact with the father. She stated her understanding that the father's child with his current partner, and his partner's 3 other children, had been placed on the "at risk" register by the local authority and that "social services are heavily involved with the family as the result of [the father's] behaviour". She did not state the basis of her understanding of these matters, and at the first hearing on 1st August 2016 it was said on behalf of the father that they were disputed. This appeared to be confirmed by the CAFCASS safeguarding letter sent to the court dated 26th July which said that there had been no domestic incidents in his current relationship by which he had 2 younger children who have had no involvement with children's services. At the hearing on 8th August 2016 the father emphatically confirmed that there had been no local authority involvement in his current relationship.

35. Also accompanying the mother's application was a "Confidential contact details" form (a C8 form) filed in accordance with rule 29.1 of the Family Procedure Rules 2010. It gives a telephone number and an e-mail address for the mother but does not state any home address for the mother or children.

36. The mother's application was listed by this court for directions and came before me on 1st August 2016 when both parties were represented by counsel and solicitors and the father was present. The mother was said to be still in Spain.

37. Counsel for the mother provided a position statement submitting that the court should consider directing disclosure from the local authority's children's services and from the police, statements from each parent and a report by CAFCASS. It was submitted that the court should direct a substantive hearing of the mother's application for retrospective permission to remove the children temporarily and allow the mother to participate by video link from Spain. It was submitted that the English court has jurisdiction as the children were habitually resident here and that the court should now consider their welfare interests rather than insisting on their return to England in accordance with the Spanish order.

38. For the father it was submitted in a position statement that the court should not be drawn into a welfare based argument predicated on the results of the mother's actions but should ensure the return of the children to England in accordance with the Spanish order made under the Hague Convention before allowing her to pursue any applications (apart from any application for interim protective measures as might be considered necessary to facilitate the return of the children). It was submitted that the mother's application should be stayed pending her compliance with the Spanish orders. Alternatively it was suggested that a hearing should be listed specifically to consider the mother's application which she should be directed to attend in person. It was submitted that having abducted the children and failed to comply with orders for their return, and having exhausted the appellate process and evaded enforcement, the mother was now seeking to overturn those decisions by application in this jurisdiction. It was also submitted that the mother had chosen not to engage with the court by participating in the proceedings brought in England in 2013. In the circumstances it was submitted that an abductor should not be able to rely on a situation of her own making to advance a welfare argument and seek orders allowing the unlawful abduction to continue.

39. At that stage it appeared to me that the position was as follows:

i. The father had exercised his right to seek an order for the return of the children by operation of the provisions of the Hague Convention. It appears that he activated the Convention reasonably promptly and pursued his wish to have the order made by the Spanish court with reasonable diligence.

ii. The Spanish court made an order for return of the children. That did not determine the merits of where or with whom the children should live. It was no more than a decision that the children had been wrongfully removed from England, their country of habitual residence, that none of the exceptions or "defences" to an order for return were established by the mother and that the children should be returned to England. In the circumstances the Spanish court had a mandatory obligation to order return in accordance with Article 12 of the Hague Convention. That decision was upheld by an appellate court in Spain.

iii. The preamble to the Convention refers to "The States signatory to the present Convention … desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence …" Although the procedure under the Hague Convention is intended to be summary and to be followed by a rapid process of enforcement to ensure the return of the children to their country of habitual residence, in this case the mother had made a considered decision not to comply with the order and has so far avoided compliance with what remains a valid and binding order of a competent court in Spain.

iv. The delays that have occurred were not the result of any inaction or acquiescence on the part of the father, but were the result of delays in the process in Spain and of the mother's success to date in avoiding enforcement of the order.

v. There was little information about the present circumstances of the children or the mother and little evidence about what the children had experienced since leaving England, but in the period of almost 3½ years since the children went to Spain and since they last had any contact with the father it was likely that they had become settled there and it was quite possible that they been influenced towards a negative view of the father.

vi. The first question for this court was whether and to what extent the court should entertain the mother's application before she has fulfilled her obligations under the Spanish order. Although the order of the Spanish court, like any order made under the Convention, is not a decision on the merits of any dispute between the parents as to rights of custody (Article 16) the English court should respect the order of the Spanish court and not embark upon consideration or determination of the merits of where or with whom the children should live or other arrangements for their future care and upbringing until their wrongful removal from England has been rectified. In principle the English court should not do anything to reverse or undermine the order made in Spain or efforts to enforce it. Indeed, it was argued on behalf of the father that this court should also show respect to that order by insisting on enforcement of it as a pre-condition to any consideration of the mother's application.

vii. These principles are consistent not only with the need to uphold the policy of the Hague Convention, but also with the general rule that a court will not hear a party who was in contempt of court until he or she has purged the contempt (Hadkinson v. Hadkinson [1952] P.285). That discretionary rule and the potential exceptions to it were further considered by the Court of Appeal in the case of Maynard v. Maynard [1984] FLR 85.

viii. By applying to the English court retrospectively the mother was, in effect, doing what she should have done before she removed the children to Spain and retained them there without the father's knowledge or consent. Alternatively, at the very least she should have responded to the father's proceedings brought in this court in 2013 and then sought leave to keep the children in Spain rather than wait until they were settled there. At the same time she could have sought protective orders from the English court. The mother's current application to the court brought in 2016 was probably a reaction to the slowly increasing pressure from the Spanish authorities seeking to enforce the order which included the possibility of criminal sanctions.

ix. The mother was relying on the jurisdiction which remains with the English Court by virtue of Article 10 of Council Regulation (EC) No 2201/2003 (Brussels IIA).

x. By recital (33) of the Regulation it is stated that the Regulation in particular seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union.  Article 24 provides that:

"1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration.

3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, and unless that is contrary to his or her interests."

xi. The court had not been referred to, nor been able to find, any authority considering the position when an application has been made in England after a European court has granted an application under the Hague Convention for an order to return children to their home country and the order for return has not been complied with. There are several reported cases in which the English court has had to consider applications made in this country after "non-return" decisions - i.e. in which European courts have refused Hague Convention applications (such as Re AJ (Brussels II Revised) [2011] EWHC 3450 (Fam) [2012] 2 FLR 689 (Baker J) and   Re C (A Child) (Brussels IIA art. 11(7) and (8)) [2016] EWHC 1154 (Fam) (Baker J). These do not appear to be of direct relevance.

40.  In the circumstances I decided to fix a hearing giving the father the opportunity to file a statement in response to the application and statement of the mother and for further skeleton arguments to be exchanged. The hearing was to determine whether the court should exercise jurisdiction to hear the mother's application for retrospective leave to remove the children from England to Spain and also to consider the father's request for disclosure of the address of the mother which was held by the court in accordance with rule 29.1 of the Family Procedure Rules 2010.

41. Two statements by the father received by the court on 5th August 2016 contained his denials of many of the mother's allegations against him and made a number of counter allegations.

42. At the subsequent hearing of 8th August 2016 the father appeared in person, being no longer able to afford legal representation. Counsel represented the mother but I was informed that she too may not be able to afford further representation.

43. Counsel for the mother provided a full skeleton argument, amplified by oral submissions, which I summarise as follows:

(i) Pursuant to Article 10 of Council Regulation (EC) No 2201/2003 (Brussels IIA) in a case of child abduction from England the English court retained jurisdiction.

(ii) In the circumstances of this case the English court should not insist upon compliance with the orders made by the Spanish court as a precondition for the exercise of jurisdiction under the Children Act 1989. In the light of the delay and the settlement of the children in Spain it would not be in their interests to insist upon enforcement of the orders made in Spain without further investigation of their welfare needs, and to do so would be a disproportionate interference with their rights under Article 8 of the European Convention on Human Rights which should be given primary weight (in accordance with the case of Neulinger & Shuruk v. Switzerland (ECtHR) [2011] 1 FLR 122, [2012] 54 EHRR 31).

(iii) The effects of delay in this case, in particular the settlement of the children in Spain without contact with the father for 3 ½ years, required there to be a proper assessment of what is now in the interests of the children. For the court to order a stay of the mother's application, albeit belated, would be unnecessarily harmful to the children.

(iv) In exercising jurisdiction the court should obtain a report from CAFCASS which should not be limited to evidence of the wishes and feelings of the children and their progress at school, but shall include a fuller general welfare assessment. Reference was made to the obligation of the court to hear the child from their perspective independently of the abducting parent (Re D (A Child) (Abduction: Rights of Custody) [2007] 1 A.C. 619, per Lady Hale at paras 57-59).  Relying on that case and on what was said in Re M and another (Children) (Abduction: Rights of Custody) [2008] 1 AC 1288 (per Lady Hale at para 57) and in Re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] AC 1038, (per Lord Wilson at paras 44 – 55) in the unusual circumstances of this case the children should be joined as parties to the proceedings and a guardian appointed for them.

44. At this stage the court has to try to balance various important factors including:

(a) The obligation to uphold the principles of the Hague Convention and to support orders for return which have been made by courts of competent jurisdiction.

(b) The right of the mother to access to the English court which alone has jurisdiction and her right to a hearing (albeit a right which may be curtailed or qualified so long as she is in breach of orders to return the children).

(c) The rights of each of the children and of each parent, including the father as the 'left behind parent', to respect for their right to family life.

(d) The rights of the children to be heard and to have their views considered.

45. While the English Court would not be re-hearing an application under the Convention it is to be noted that when the case of Re LC was remitted to the High Court (Re LC (Habitual Residence: Grave Risk of Harm)) [2014] EWFC 8 (Fam) [2015] 1 FLR 1019 Roderic Wood J said as follows:

"[106]   Proceedings under the Convention and the Regulation are usually 'summary', and the timeframe for them in countries where the Regulation operates has been agreed by those countries to be, ideally, 6 weeks.

[107]   Whilst there is nothing of which I am aware in the Convention or Regulation to permit a second look at the children's objections (if any), nor is there any provision to prevent it. That is no doubt, as I have made clear already, perhaps because of the intended summary nature of such proceedings, and that accordingly circumstances, including the lapse of time encountered here, are most unlikely to occur which would give rise to matters not already considered within that anticipated narrow period before resolution.

[108]   But it seems to me an affront to the subject children if circumstances beyond their control have conspired to cause this egregious delay, during which period their views have, in the light of their experiences, changed, or, as is argued here, remained the same as before but are now so firm as to translate from what were found by Cobb J to be preferences to become, as defined in the Convention and the relevant case-law, objections.

[109]   I can well see that to permit a second look at this issue might play into the hands of a manipulative parent who had been engineering delays in the litigation, providing time to work on the children so as to distort their views. There might well be other influences at work as suggested by the mother. But it will be recalled that these 'snapshot' interviews of children the subject of such proceedings and proffering their objections by way of defence, are carried out by a cadre of highly trained and very experienced practitioners in the Cafcass High Court Team, astute at spotting such influences at work."

Conclusions.
46. I have reached the following conclusions:

(i) It is now not sufficient, and not in the interests of the children, to do nothing more than to stay the mother's application and allow the uncertain process of enforcement in Spain to continue.

(ii) A decision based on the future welfare needs of the children needs to be taken, and, because of the jurisdictional provisions of the Council Regulation, it should be taken in England.

(iii) In view of the delays which have occurred in the Spanish jurisdiction there should be, so far as possible expedition of the proceedings in England.

(iv) It is necessary therefore to invite CAFCASS to appoint a guardian for the children and join them as parties to the mother's applications. The probable absence of any future legal representation for either parent is, in itself, a reason (but not the only reason) for having a legally represented children's guardian in this case.

(v) It may well be that the children will now need help to see that their father is not a threat to them or to their mother. Careful consideration will need to be given to how best to begin to restore some relationship between the children and the father. Mediation should be considered.

47.  I will therefore direct that the children should be joined as parties to the proceedings and that pursuant to rule 16.4 of the Family Procedure Rules 2010 an officer of CAFCASS should be appointed as their guardian. I will defer further directions until a guardian has been nominated and a solicitor instructed. The solicitor who is instructed can then liaise with the court fix a further directions hearing as soon as convenient.

48. Without setting out all the directions which could then be made I would expect a report by the guardian to be prepared covering the current circumstances of the children, their degree of stability and settlement in Spain, their views on returning to England and their views on some contact with the father. Other directions will be required to deal with any necessary further evidence (including possible third party disclosure) and whether the mother should be required to attend a hearing in person or might participate by video link. Protective orders or undertakings can also be considered, as may become appropriate.

49. I will direct that the mother's contact details held on the court file may be seen and noted by CAFCASS but will not be disclosed to the father or his representatives (if any) without further order of the court.

50. A copy of this judgment will be sent by the court to ICACU.