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S (A Child) (Article 16 and 18 BIIa and Article 19 EU Service Regulation) [2017] EWHC 3768 (Fam)

Judgment of Mr Justice Williams considering the issues of habitual residence, jurisdiction in accordance with article 19 of Brussels IIa, article 18 of Brussels II and article 19 of the EU service regulations.

On 7th September 2017, the father applied for orders under the inherent jurisdiction in respect of his son ("S"), who was 5 and ½ years old at the time, as his mother had failed to return him to the UK following a holiday to Spain. In particular, the father asked that S be made a ward of court, sought a Child Arrangements Order, declarations in respect of the court's jurisdiction and a return order directing that S be returned to the jurisdiction. The father also made an application to the English Central Authority for S's return, in accordance with the 1980 Hague Convention in respect of which there were yet to be proceedings.

On 14th September 2017, the mother issued her own application in the Spanish court in respect of which there was an urgent hearing on 15th September 2017 at which an order was made setting out what are described as "urgent provisional measures" providing for S to remain in the custody of his mother and have monthly visits with his father.

At the time of the hearing before Mr Justice Williams ("The Judge"), an order had already been made on 20th September 2017 by Mr Justice Holman which contained a number of recitals including that the court was satisfied, on a provisional basis, that S was habitually resident in the UK at the time of his departure to Spain, that S was wrongfully removed, or was wrongfully retained outside the jurisdiction, on 23rd August 2017 when he was expected to return, that S's removal and/or retention was wrongful and in breach of the rights of custody attributed to the father which he was exercising at the time of S's removal and retention; and that the courts of England and Wales had jurisdiction pursuant to Articles 8 and 10 BIIA.
Accordingly, at the subsequent hearing on 18th October 2017, the Judge had to determine those issues having first resolved the question of whether or not the UK court was "first seized" of the proceedings as well as consider the effects of Articles 16 and 19 of Brussels IIA.

The Decision
The Judge gave an ex tempore judgment in which he first dealt with the question of whether or not the UK court was in a position to determine the case and concluded that it was on the basis that it was clear that the father's application was made before that of the mother and that, therefore, the UK court was indeed first seized [25] and had jurisdiction. Accordingly, the Judge's view was that the Spanish court should have stayed its proceedings in accordance with Article 19 of Brussels IIA pending the UK court's decision with respect to jurisdiction.

Having reached that conclusion, the Judge went on to consider whether the UK proceedings should be stayed in accordance with Article 18 of Brussels II and Article 19 of the EU Service Regulation if it could be shown that the mother, being in another member state at the time of the father's application, had not been properly served and / or provided with sufficient time in which to arrange a defence. At [28 - 31] the Judge found that the mother had been validly served as there was an Affidavit of Service confirming that she was personally served with the relevant documents on 3rd October 2017.

Furthermore he held that, albeit that service was only effected 15 days prior to the hearing rather than the 21 days provided for in FPR PD6B, he could apply his discretion to use his powers in accordance with FPR 4.1(3) to shorten the time for service as no injustice would be caused to the mother given she had solicitors in Spain and had been afforded ample time in which to respond with an acknowledgement of service, evidence and / or any submissions regarding jurisdiction had she wished to do so and, accordingly, that he was able to proceed to judgment.

When addressing the question of the court's jurisdiction pursuant to Article 8 of Brussels IIA on the basis of S's habitual residence the Judge at [9], sets out in detail the various factors to be taken into account when determining a child's habitual residence; underlined by the fundamental principle that, as per Mr Justice Peter Jackson in Re F (Habitual Residence) [2014] EWFC 26, the court must conduct a factual enquiry tailored to the circumstances of the individual case.

Having considered those factors, at [32-34] the Judge concluded that the court did have jurisdiction pursuant to Article 8 of Brussels IIA as S was habitually resident in the UK on the basis that, immediately prior to his removal to Spain, he had been living in England with his parents and sister for a year, was attending an English school, had acquired the English language, and embedded himself in his community, and that those factors were not negated by his having also retained links in Spain whilst in the UK and / or the fact that S had begun to be reintegrated into his Spanish routine at the time of the judgment.

At [36] the Judge went on to make a declaration that the mother's failure to return S from Spain on 23rd August was a breach of the father's rights of custody under the applicable provisions of the 1996 Hague Convention which he was exercising at the time of S's removal.

As S had been wrongfully retained in Spain, the Judge also had to consider whether the court's jurisdiction was not undermined by Article 10 of Brussels IIA which, if satisfied, would mean that the UK court's jurisdiction could not be maintained as the provisions of Article 10 had not been fulfilled and therefore the court retained substantive jurisdiction over S pursuant to Article 8 of Brussels II [37].

The Judge then considered what orders, if any, he should make in respect of S. At [41 and 42], he decided that it was not appropriate or necessary to establish S's views in order to make interim orders regarding contact before ordering that S be returned to the jurisdiction of England and Wales. He also ordered that S should have "proper" contact with his father, to include overnight contact, in compliance with s.1(2A) of the Children Act 1989, S's rights under Article 24 of the EU Charter and Article 9 of the United Nations Charter of Fundamental Rights, so that he could resume his relationship with his father and so that this could inform an assessment by CAFCASS of S and any recommendations that the relevant CAFCASS officer would be making to the court regarding the medium term orders that should be put in place pending a final decision.

Summary by Lucinda Wicks, barrister, Coram Chambers 

________________________

No. FD17P00478
Neutral Citation Number: [2017] EWHC 3768 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Wednesday, 18th October 2017


Before:

MR JUSTICE WILLIAMS
(In Private)

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Re S (a child)

(Article 16 and 18 BIIa and Article 19 EU Service Regulation)


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Transcribed by Opus 2 International Ltd.
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**This transcript is subject to Judge's approval**

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MR ALISTAIR G PERKINS appeared on behalf of the Applicant.  (Instructed by Crosse & Crosse)

THE RESPONDENT did not attend and was not represented.

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J U D G M E N T
If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.

MR JUSTICE WILLIAMS:

1 I am concerned today with a young boy, SS who is now 5½ years old.   His father is the applicant today, F who is represented by Mr Perkins, counsel.  S's mother is M who is neither present nor represented today but as I shall turn to later, has been served with notice of these proceedings.  S also has an older sister, A, who was born in 2003 or 2004 who is aged about 14.  She has some relevance to these proceedings as, again, I shall return to.
2 The application which is before me today is for orders under the inherent jurisdiction of this court. It was issued by the father on 7th September 2017.  That application sought wardship, together with child arrangements orders, and the thrust of the application today has been to invite me to make declarations relating to the jurisdiction of this court and to seek a return order directing that S be returned to this jurisdiction.

3 The immediate background to the proceedings is that S, his mother, and A came to live in the United Kingdom in September 2016 they having all lived prior to that in Spain.  In the summer of 2017, they returned to Spain ostensibly for a holiday with flights to return booked on 23rd August 2017.  However, on 13th August, the mother told the father that she would not return to England and, as a result, on 7th September the father issued these proceedings in tandem with an application which he had made to the English Central Authority for the return of S pursuant to the 1980 Hague Convention.  That application, I am told, has been forwarded to the Spanish Central Authority but, as yet, no proceedings have ensued.  So although the father had issued these proceedings on 7th September, which were listed for a hearing on 20th September, on 15th September the Spanish court made an order which I shall return to later.  By the time this matter came to court on 20th September, the father had received that order, I think, the day before.

4 On 20th September, Mr Justice Holman, on a one-sided but on notice hearing to the mother, made an order which contained a variety of recitals, in particular, at paragraph 8: the court was satisfied on a provisional basis that the child was, on 25th July 2017, habitually resident in this country; the child was wrongfully removed on that date, or was wrongfully retained outside the jurisdiction of England on 23rd August 2017; that the child's removal and/or retention was wrongful and in breach of the rights of custody attributed to the father and at the time of removing and retention, he was actually exercising those rights; and that the courts of England and Wales have jurisdiction in matters of parental responsibility pursuant to Articles 8 and 10 BIIA.

5 At paragraph 9 of the order, S was made a ward of this court and at paragraph 11, the court set out the list of issues which were for this court to determine today.  At 11A, it recorded that the court was to consider whether the provisional recitals which I have just read out were to be made final Declarations and whether the court should order S's return forthwith to England, and a series of other orders concluding with whether the orders which it was proposed be made should be subject to recognition and enforcement under the provisions of Brussels IIA.  The order, as I say, listed the application to be heard by this court today.  It made provision for the mother to attend, I note with a penal notice being attached.  It also provided for the mother to file evidence by no later than 13th October.  It also provided for service of the proceedings on the mother in accordance with the law of Spain and also by email.

6 So the issues which I have had to consider today include those which were identified in the order of Mr Justice Holman but, in addition, I have had to consider the question of whether this court is first seized and the effects of Articles 16 and 19 of Brussels IIA.  I have to consider an 'examination as to admissibility' under Article 18 of the Brussels IIA Regulation and Article 19 of the EU Service Regulation.  In connection in particular with that, I have had to consider whether the mother has been validly served with these proceedings and thus been given an opportunity to defend them, which has required consideration of the means and timing of service, and whether there are any time limits which needed to be abridged, and ultimately and most importantly, what welfare order ought to follow on from the conclusions on the earlier issues.

7 The hearing has been listed for one day and I have heard evidence from the father.  I have also heard the interpreter interpret from the witness box the Spanish order made on 15th September.  I have received a series of documents in particular in relation to service.  I have had Mr Perkins' helpful written skeleton and submissions, together with certain authorities.  I have had the court bundle and, in particular, I have been able to read the statement of the father, the statement of the father's solicitor dealing with service, and the statement of service of a Spanish solicitor who personally served those documents.  I am now giving an ex tempore judgment on all of those issues at shortly after four o'clock.

8 Turning briefly to the law, the principle jurisdictional issue really relates to whether S was habitually resident in England at relevant dates and thus whether this court has primary jurisdiction over him pursuant to Article 8 of Brussels IIA.  The other issues require consideration, albeit in brief, of other aspects of the Brussels IIA Regulation and the EU Service Regulation as well as the Family Procedure Rules, and I shall deal with those where I deal with those particular issues.  Also, of course, I need to consider the law relating to S's welfare.

9 So turning first of all to habitual residence, Article 8 of the EU Regulation provides, in terms, that the country where the child is habitually resident shall have jurisdiction over him.  Habitual residence, in a very brief overview, requires an assessment of the degree of the integration of the child in a social and family environment.  The interpretation of the principle of habitual residence derives from three cases in the Court of Justice of the European Union, namely Proceedings brought by A (C-523/07) [2009] 2 FLR 1, Mercredi v Chaffe (C497/10 PPU) [2011] 1 FLR 1293 and C v M (C376/14 PPU) [2015] 1 FLR 1, supplemented and clarified by the quintet of cases in the Supreme Court: A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60; Re KL (A Child) (Abduction: Habitual Residence: Inherent Jurisdiction) [2014] 1 FLR 772; In the Matter of LC (Children) (No 2) [2014] UKSC 1; AR v RN (Scotland) [2015] UKSC 35, and In the matter ofB (A child) [2016] UKSC 4.  They have been summarised to a degree by Mr Justice Hayden in B (A Minor: Habitual Residence) [2016] EWHC 2174 and drawing all of those strands together, the principles which I have to apply in determining where S was habitually resident are these.

(a) First of all, habitual residence is a question of fact and not a legal concept. 

(b) Secondly, the question of habitual residence is to be determined identically in respect of a child irrespective of the legal convention, regulation, or Act that the question falls to be determined under. 

(c) The test adopted by the European Court is the place which reflects some degree of integration by the child in a social and family environment in the country concerned.  Its meaning is shaped in the light of the best interests of the child, in particular on the criterion of proximity.  Proximity in this context means the practical connection between the child and the country concerned.

(d)  A child will usually not be left without a habitual residence.  If a set of facts could reasonably lead to a finding of habitual residence or no habitual residence, the former should be preferred.  Complete integration is not required but the 'seesaw' analogy helpfully illustrates the linkage between the loss and acquisition of habitual residence.

(e) The social and family environment of an infant or young child is shared with those upon whom he is dependent.  Hence, it may be necessary to assess the integration of that person or persons.  A child does not automatically have the same habitual residence as a parent.  The older the child, the greater the degree of distinction may be.  So a school aged child will be different from a babe in arms, and an adolescent will be different again.

(f)  the essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.

(g) Parental intent plays a part in establishing or changing habitual residence, but only in so far as it goes to the reasons for a child being present in a country or leaving that country and going to stay in another.  Parental intent has to be factored in along with many other relevant factors in deciding whether a child has a sufficient degree of stability and is sufficiently integrated so as to be habitually resident.  There is no requirement that child should be resident in a country for a particular period of time let alone there should be an intention on the part of one or both parents to reside there permanently. 

(h) the state of mind of the child concerned may also be relevant to assessing their degree of integration. The majority in Re LC held it was only adolescents or those to be treated as adolescents whose state of mind was relevant. The minority (which included Baroness Hale) held that there was no logical reason to exclude the state of mind of younger children;

(i) The assessment of integration requires the consideration of objective and subjective factors.  It is a comparative exercise involving consideration of the quality of the previous alleged habitual residence or that of the possible new habitual residence. The judge must take sufficiently into account the facts relevant to the old and new lives of the child and the family although need not necessarily do so in a side by side analysis of the sort carried out by Lord Wilson in Re B as long as it is apparent from the judgment as a whole that the exercise has been undertaken; It is the stability of a child's residence as opposed to its permanence which is relevant, though this is qualitative and not quantitative, in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there. Expectations which the fact-finder may well find to be unfulfilled in the case before him: (a) the deeper the child's integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state; (b)the greater the amount of adult pre-planning of the move, including pre-arrangements for the child's day-to-day life in the new state, probably the faster his achievement of that requisite degree; and (c) were all the central members of the child's life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it."

(j)   The requisite degree of integration can, in certain circumstances, develop quite quickly.  It can arise in a single day. 

(k) the 'rule' propounded by Lord Scarman in Shah that habitual residence is to be judged by objective factors is to be consigned to history. Subjective state of mind is as susceptible to proof as other matters particularly in the digital age

(l) the previous rule that 'habitual residence' cannot be changed without the consent of all holders of parental responsibility is to be discarded. Whether a holder of parental responsibility has consented may affect the quality of integration but is not a bar to habitual residence changing;

So as Mr Justice Peter Jackson said Re F (Habitual Residence) [2014] EWFC 26, the court must conduct a factual enquiry tailored to the circumstances of the individual case.

10 In terms of welfare, in considering interim orders regarding S I apply s.1(1) of the Children Act - his welfare is paramount;  s.1(2) - delay may be prejudicial to his welfare; s.1(2A) - the presumption of parental involvement; s.1(3) - the welfare checklist; and s.1(5) - I remind myself I should only make an order if I consider it would be better to do so than to make no order.

11 Turning now to the evidence. The father is now aged 51.  He is a dentist who, for the last few years, has been in practice in England.  The mother is aged 45.  She is, by occupation, a physiotherapist and has historically worked in Spain.  S's half-sister, A, was born in about 2003 or 2004 and so she is now aged 13 or 14.  The parties married, I think in Spain, on 23rd October 2010 and S was born on 28th April 2012.  Because of the economic recession in Spain, the father was not prospering financially and so he decided to relocate to England in order to practice dentistry here and in 2013 he moved to England.  The mother, A, and S remained behind in Spain and the father visited Spain, I think, about eight times a year.  I am not sure whether the mother and children visited him in England. 

12 In any event, by about Easter 2016, the mother and father had been discussing a plan for the family to relocate to England and around Easter 2016, the mother, A, and S came to England and school places were applied for in respect of A and S.  There was an issue in relation to A because her father, I think, lives in Madrid and she was having contact with him on a fairly regular basis.  Of course, her moving to England would have had an impact on that.  It seems that the agreement that was reached by the mother with A's father was that A would come to England for a year and certainly the father understood the position to be that A would return to Spain after a year and live with her father.  Whether that, in fact, was truly the position, I cannot determine. 

13 In any event, in September 2016, the mother, A, and S indeed did come to England to live and join the father in his rented accommodation.  The children commenced school.  S started in the reception class at primary school.  He started to integrate into his community.  He started playing football on Saturdays and he made friends at school.  The father says that the mother was taking English lessons with a view to commencing work as a physiotherapist in England.  It seems from the father's evidence that A, although doing reasonably well I think he said at school, was not particularly happy.  That perhaps is not a surprise for a teenager who had lived all her life in Spain.  It seems that in general terms she was not happy with the move.  That, perhaps, is in contrast to S who the father says was prospering in England, enjoying his life, had become fluent in English and was ready to go back to his primary school in Year 1 in September 2017. 

14 In April or May, the family purchased tickets for the mother, A, and S to go to Spain for the summer holiday.  On 27th May, S's residence in England was registered with the Spanish Consulate in London and around that time, the mother and father began to look for a property to purchase in the South West of England.  It was, I think, just before the mother, A, and S travelled to Spain that the family saw a home which they wished to buy and shortly after the mother, A, and S left for Spain, an offer to purchase the property was accepted and the purchase process was commenced.  However, on 13th August, the mother informed the father that she did not intend to return to England with S.

15 The father says this was against a backdrop where he had been uncertain as to what was going on in her mind over June and July because the mother had, for instance, shipped the family dog back to Spain.  She had taken or was wanting to take all of S's clothing with him, including winter clothing, which was not required in Spain over the summer, and it may well be that the mother was planning not to return.  However, in any event, on 13th August she told the father that she did not intend to return.  The father I think got the impression, and certainly this seemed to be the effect of his evidence from the witness box, that A had made very clear when she got back to Spain that she was not happy about returning to live in England.  Equally, she probably was not terribly happy about going to live with her father in Madrid, which would have required a change of carer and a change of schools.  Perhaps as the father indicated, A was saying to her mother in no uncertain terms that she wanted to resume the life that they had led in Spain prior to coming to England in the summer of 2016.  The mother plainly then was torn between her daughter wanting to remain in Spain and herself wanting to pursue her family life with the father and S in England.  However, she chose, in the end, to remain in Spain.

16 Thus, on 23rd August, the return tickets on the easyJet flight from Madrid to Bristol were not used.  S, the mother, and A have remained in Spain since with S, I understand, returning to school, A returning to school, the mother resuming occupation as a physiotherapist, and S being cared for in the afternoons after school ceased at two o'clock by his maternal grandmother.

17 In the early part of September, perhaps late August and early September, there were significant difficulties, the father says, in having contact with S.  The mother claimed that the internet was not working although the father eventually ascertained that it was by directly connecting with S's iPad.  Since then, some contact, either Facetime or Skype contact has been taking place on a more regular basis.

18 As a result of the retention, as I have already said, the father both made an application to the English Central Authority to commence the 1980 Hague Convention summary return process in Spain but also issued these inherent jurisdiction proceedings.  The date on the proceedings is 7th September 2017.  That is when the proceedings were sealed by the High Court of Justice Family Division and they were allocated case number FD17P00478.  Those proceedings were sent by email to the mother and her lawyers and I will return to that in a moment.

19 It seems now as a result of enquiries that were made today, that on 14th September, exactly one week after the English court was seized, that the mother lodged an application with the Spanish court.  The court then undertook a hearing on 15th September.  The order that emanated from that hearing has been translated to me today.  In effect, it seems to be an application for urgent provisional measures.  The jurisdictional basis on which it is made refers to the Spanish criminal and civil codes.  I do not know whether those, in turn, cross-refer to the Brussels IIa Regulation (EC) No 2201/2003.  They also refer to divorce proceedings or separation proceedings having been issued.

20 The father obviously was not given notice of that.  The order expresses the hearing to have been urgent, in particular, on the basis of S's medical issues which the father tells me that whilst they were critical in his very early years, the tumour that he had has been operated on and now he is essentially a healthy and happy boy.  The Spanish court made an order, so far as it is relevant, that S be in the custody of his mother and that he have one weekend per month visitation with his father.  The Spanish court made provision for there to be a further hearing on 20th December and the order makes reference to the possibilities of the order being appealed.  I shall return again to the contents of that order slightly later.

21 That order was then received by the father by email from the mother's Spanish lawyers on, I think he said, 18th or 19th September.  I think it was the day before the hearing in front of Mr Justice Holman.  So if that was 19th September, then he received it on or about 18th September.  So the order was made by Mr Justice Holman on that date.  Subsequently, steps have been taken to serve the mother which, again, I shall return to in a moment.  That process culminated with personal service being effected by a Spanish solicitor on 3rd October.  The mother was given until 13th October to file her evidence in response and to attend this hearing today which, self-evidently, she has not attended.

22 Turning now to the issues which I have to consider, first of all I have to consider the question of whether this court is first seized or second seized, and whether, in accordance with Brussels IIA, this court should proceed to determine the case or whether it should defer to the Spanish court.  It is clear that this court was seized of these proceeding by the issue of the originating process on 7th September.  Thus, the provisions of Article 16 of Brussels IIa are met in that this court is deemed to be seized at the time when the document instituting the proceedings is lodged with the court provided that the applicant does not subsequently fail to take the steps required to have service effected on the respondent.  It is clear from the statement of service that the father has taken steps required to have service effected as well as trying various alternative means by email and airmail.  So it is clear that this court was seized as of 7th September 2017.

23 That being the case, when the Spanish court had an application lodged with it on 14th September, Article 19 of Brussels IIa should have kicked in.  Article 19 provides that where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seized shall, of its own motion, stay its proceedings until such time as the jurisdiction of the court first seized is established.  It seems clear that the cause of action was essentially the same in that the mother was seeking custody and contact orders in the Spanish court whilst the father was seeking child arrangements orders in this court, which essentially are the mirror of custody and access orders.  So the cause of action is the same and thus the Spanish court being second seized should, in compliance with Article 19, stays its own proceedings until this court has determined jurisdiction in this court is established.

24 I note that the father's solicitors have sent to the mother, the Spanish court, and the mother's lawyers a detailed letter which sets out the position in relation to what is said to be the jurisdictional issues.  I have seen evidence that that was received and signed for by the mother on, I think, 9th October.  I have not seen the signed for receipts for the service on the Spanish court and the mother's Spanish solicitors, but I hope that by some shape or form, that letter, which puts all of the relevant individuals in Spain on notice of the fact that this court was seized on 7th September, will be drawn to that court's attention. 

25 So to the first question of whether this court was first seized and should it proceed to examine its jurisdiction, the answer is yes, it is first seized and I should proceed to consider my jurisdiction. 

26 The second issue arises from Article 18 of Brussels II and Article 19 of the EU Service Regulation which kick in where a party to proceedings is habitually resident in another member state and where that individual does not enter an appearance.  Articles 18 and 19 both, in terms, provide that the proceedings should be stayed where it is not shown that the respondent has been able to receive the document instituting the proceedings in sufficient time to enable them to arrange for their defence.  That is the wording of Article 18.  The wording of Article 19 is broadly similar although it is more directive in that it provides that:

"Where a writ has to be transmitted to another member state for the purposes of service under the provisions of this Regulation and the defendant has not appeared, judgment shall not be given until it is established that–

(a) the document was served by a method prescribed by the internal law of the Member State addressed for the service of documents in domestic actions upon persons who are within its territory, or

(b) the document was actually delivered to the defendant or to his residence by another method provided for by this Regulation."

So I have to consider whether the mother has been validly served with these proceedings and whether that has given her sufficient time to enter a defence. I am treating the mother as being habitually resident in Spain for these purposes.

27 Certainly, these proceedings were required to be served under the provisions of the EU Service Regulation by operation of FPR 6 and, in particular, PD6B.  The originating process was supposed to be served and the respondent had a 21-day period in which to file an acknowledgement of service.  Having looked at the evidence from the father's solicitor, it seems that the attempts to serve by email cannot be said to have been sufficiently effective to have put the mother on notice.  Although they were sent to three email addresses of the mother's, there is no receipt to demonstrate that they were received by her nor is there a 'read receipt' to indicate that she had read those.  The service on the mother's alleged solicitors which did elicit a response is ineffective because the response from the solicitors simply said that they were not instructed by the mother.

28 The airmail service of the original application has not been effected by registered delivery or signed for delivery and so that would not seem to accord with the requirements of Spanish law which require service by a method by which there can be clear evidence that the process has been delivered.  However, in contrast to that, the order and all of the relevant documents have been subject to further service attempts, first of all again by airmail service although the signed for receipt relates not to all of those documents, but they have been served by personal service by Mr Gill.  I have seen his Affidavit of service which confirms that he served them on 3rd October 2017, and that the respondent mother identified herself and accepted service of a list of documents which included the originating process, the court order, and notice of proceedings all in both English and in translated Spanish versions.  So it seems clear that on the basis of what the European judicial network website says in relation to valid ways of serving in Spain, the mother now has been validly served in Spain by personal service.

29 She was served on 3rd October, which is only 15 days ago, and so she has not had quite the 21 days which are provided for in FPR PD6B.  However, as Mr Perkins rightly points out, the court has a discretion and power under FPR 4.1(3) to shorten or extend time periods for service if in accordance with the overriding objective.  Essentially then, the court in relation to service may shorten time if no injustice is caused to the individual.

30 By shortening the time for service, I am satisfied, given that the mother has Spanish lawyers and has had them in place since at least 14th September, and that she has had the service in Spanish translation since 3rd October, that 14 days is more than adequate time for her to have taken steps to arrange for her defence.  No document at all has been received either by the father's solicitors or by the court and I am sure that in the period that has elapsed in those 15 days that the mother, together with her Spanish lawyers, could have put together something which could have been put before this court in the form of acknowledgement of service, evidence, and/or submissions on the question of jurisdiction.

31 So in respect of Article 18 of Brussels IIa and Article 19 of the EU Service Regulation, I am satisfied that the documents were served by a method prescribed by the internal law of Spain.  I am satisfied that it was effected in sufficient time to enable the respondent mother to defend this process.  That means that I can proceed to judgment.

32 Moving on then to the question of my jurisdiction and whether habitual residence of S is established in England or not, I have already set out the evidence relating to his integration to England.  He has been here for a year.  He has been living with his mother and father in England for a year together with his sister.  He has been attending an English school, acquiring the English language, and embedding himself in his community through activities such as his football club.  I have no doubt that from his point of view, he has become habitually resident here over the course of that year notwithstanding there perhaps being some uncertainty in the mind of his mother as to what would happen at the conclusion of that year or some uncertainty or desire on the part of his sister to go home.

33 So I am satisfied that by July, the habitual residence that he had had in Spain, based on his living there throughout his minority until summer 2016 and all the links that he had in Spain - the fact that the family still retained a home there, he had relatives there, and no doubt some little chums from his former existence there - whilst those roots still remained in Spain, they have been sufficiently uplifted from Spain by the putting down of roots in England such that Lord Wilson's seesaw had tipped decisively away from Spain over the course of the year and have landed firmly in England. 

34 Thus, by the time he left England, he was clearly habitually resident here.  Did that alter by 23rd August as a result of his being back in Spain?  In his mind, it would seem he was returning to Spain for a holiday rather than returning there to live because that was the nature of the agreement between the parents at the time he left.  He had only been back in Spain by 23rd August for about four weeks.  He had not been, I do not suppose, or the evidence does not establish that he had been in nursery or that he had really re-established any roots in Spain beyond those which one would expect a 5-year-old to re-familiarise themselves with as a result of being on holiday.  So whilst undoubtedly he would have been integrating again into that framework that existed in Spain prior to him moving to England, I am not satisfied that it was to a sufficient degree to pull up his roots in England and tip the seesaw back in favour of Spain.

35 Equally, by 7th September, another two weeks had passed.  He may perhaps have just gone back to school and so would have certainly been re-familiarising himself and beginning the process of reintegration into a Spanish way of life but, at the same time, he had been expecting to come back to start Year 1 in his primary school in England and his dad was back in England.  It must have been somewhat confusing for him as to what was going on particularly as there was relatively limited contact between him and his father at that point in time.  On a clear balance, in my view, the seesaw was still tipped in favour of England as at 7th September when these proceedings commenced.  Therefore, I am satisfied that he was habitually resident in England and thus this court has jurisdiction pursuant to Article 8 of Brussels II.

36 Given that he was not returned from Spain on 23rd August when he was expected to, I am satisfied that that is a breach of the father's rights of custody under English law which arise through both the origins of his parental authority under Spanish law which would have been, in any event, converted into parental responsibility under English law by operation of the applicable law provisions of the 1996 Hague Convention.  The non-return of S on 23rd August was therefore a breach of those rights which he was exercising at the time and I will make declarations in those terms.

37 It being a wrongful retention in Spain, Article 10 of Brussels IIa also kicks in to supplement Article 8 to maintain jurisdiction in this country.  Unless and until the loss of jurisdiction provisions under Article 10 are fulfilled, which is a matter for this court to determine, plainly none of them are fulfilled at the moment and so I have substantive jurisdiction over S.

38 So having established all of those preliminary points, what orders shall I actually make in respect of S who is, as I say, a 5½ year old?  The first issue I have asked myself, before making any orders at all, is whether I should hear from S.  At his age and in these particular circumstances, it is a serious question to be addressed.  At my invitation, Mr Perkins spoke to the CAFCASS High Court team today in the form of Angela Adams, who is a senior practitioner there.  She said that there would be limited value in her speaking with a 5½ year old in light of the issues which arise in the case, although she would be prepared to give it a go if the court considered it appropriate to do so.  She was clear that a Facetime or Skype interview would be of limited utility with a 5½ year old.  She said that even a face to face interview would be of relatively limited value but, of course, it would put his wishes and feelings before the court.  She said that if S was to return, they would be able to see him fairly quickly.

39 I do not consider in these circumstances that it is appropriate to ascertain his views given his age and his degree of maturity certainly for the purposes of interim orders.  I think it will be important in due course when one is looking at the medium to long-term for him to be seen and for him to be seen with his father to assess that relationship, as well as being seen with his mother and ideally his sister as well to ascertain the nature of that relationship.  However, for the purposes of this interim order, I do not consider it appropriate or necessary to establish his views.

40 In terms of the overall welfare evaluation necessary, it must be a summary and limited evaluation at this point in time.  I think it is significant that obviously he has lived here for a year and has settled here, but equally it is significant that prior to that, he lived in Spain with his mother and his sister.  His mother is back in Spain at the moment working, and his sister is back in Spain back at school at the moment.

41 I think plainly to further this court's assessment of what orders will be in S's medium to long-term welfare interests, this court needs to assess him.  Even more importantly, S needs to be having proper contact and proper time with his father, both in compliance with s.1(2A) of the Children Act 1989, but also in compliance with S's rights under Article 24 of the EU Charter and Article 9 of the United Nations Charter of Fundamental Rights which confirm that it is important for a young child to have a direct and regular relationship with their parents.

42 So, in the short-term, I consider that an order should be made which requires that S be returned to the jurisdiction of England and Wales, both for the twin purposes of resuming his relationship with his father by direct contact, including overnight contact, and in order to enable a member of the CAFCASS High Court team to see S after he has been with his father for contact and to assess him so that they can advise me at a further hearing on the medium term orders that should be made pending a final consideration of the no doubt by then competing applications which the mother and father will place before the court.

43 That is my judgment.  I will hear further from Mr Perkins, albeit briefly, on the precise formulation of the contact provisions and the timing of the order.  I will in due course sign an Annex II certificate so that an application can be made in the Spanish court to enforce this order, although I have a post-script which is that I very much hold out the hope and implore M to engage in these proceedings and to bring S back so that he can be seen by CAFCASS, he can be seen by his father, so that she can attend the next hearing in this case before me at some point, I would imagine, later on this year.

44 I hope that the judgment I have just given makes it clear to both F and M that I have an entirely open mind about where the medium to long-term future of S lies and that his return to this jurisdiction, pursuant to this order, is by no means an indication that he will remain in England for his minority.  The question of what will happen to him in the medium to long-term is a matter for this court to consider on another occasion and all options remain open to the court depending on the applications which are made and the evidence which emerges.  So I very much hope M will voluntarily comply with this order and bring S back to England so that we can get on with the process of reaching a final determination over his future.