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Re T & J (Children) [2006] EWHC 1472 (Fam)

High Court: Sir Mark Potter (20 June 2006)

Mother's application for summary return of children under Hague Convention proceedings dismissed.

The mother applied for the summary return of the parties' 2 children. The family had lived in Spain although Father was British. The Father was the principal carer. On separation the Father removed the children to England without the Mother's consent. The Mother commenced Spanish proceedings of a quasi-criminal nature for return of the children and matrimonial proceedings for custody of children. The Spanish court heard the Mother's provisional measures application and held for the time being it was beneficial for care and custody of children to be granted to Father and determined it was in the children's best interests to remain in England. The Mother subsequently commenced proceedings under Hague Convention stating that at the time of the Spanish order she was unaware its existence. Meanwhile the Father had commenced proceedings in England for a residence order which were stayed pending the determination of Hague Convention proceedings.

The Father relied on 3 defences:

1. The Mother's subsequent acquiescence in the retention of the children as she had known their whereabouts and did not issue Hague Convention proceedings for their return for 4 1/2 months.

2. The unlawfulness of the removal had been overtaken by a full consideration by the Spanish court on welfare grounds. This order should be recognised and given precedence in accordance with Brussels II b.

3. Article 13(b).

The Mother argued that the Father having breached article 3 of Hague Convention she was entitled to a summary return. She contended that the Spanish decision was not inconsistent as the court was evidently unaware of the Hague Convention.

Held, dismissing the application for summary return, that the Spanish order took precedence in accordance with Brussels II b.

The primary rationale of the Hague Convention is to ensure that decisions as to welfare of children are taken in the country of their habitual residence. The President considered this case "unusual" as there had been an adverse result in the country of habitual residence prior to the commencement of Hague Convention proceedings. There had been a full and careful hearing in Spain by a court in possession of all relevant facts and circumstances of the Father's removal. Further by virtue of Spanish law, the interim custody order was not capable of appeal. If an order for return were made, so far as the Spanish Court was concerned, the Father would have a right to return to England. This was sufficient to make it clear that if the court were obliged to return the children it would defeat the overall purpose of Hague Convention. The President was of the view that is should not be necessary to resort to Brussels II b but given the mutual exclusivity of the concepts of removal and retention it would not be feasible for the courts to treat the decision of the Spanish Court as having intervened to validate or excuse what would otherwise be a wrongful removal. However the application of Brussels II b avoided such a result.

Whilst Brussels II b does not envisage a situation where the decision has already been made by a court sanctioning ex post facto the removal of a child it emphasises the primacy of the jurisdiction of the Member State of child's habitual residence. Whilst the Father had taken no step for formal recognition of Spanish judgment or enforcement by applying for registration under article 28(2) it was not necessary for purposes of the court according recognition under article 21(4). The court recognised that to order a return would fail to give effect to its recognition of the Spanish judgment.

The President considered that the Court could only proceed on the basis of the state of play prevailing at the time of the hearing rather than the situation existing at time of commencement of proceedings. If prior to a Hague Convention hearing the issue of residence is resolved in favour of the abducting parent then the whole thrust of Brussels II b operates in favour of an order for non-return. Whether or not either party is aware of Hague Convention is beside the point.

The President emphasised that it is not for this court to review the substance of the Spanish decision. However it was inconceivable that the matter would not have proceeded on the same basis with the same outcome if the Court's attention were drawn to the Hague Convention. Furthermore there had been no material change of circumstances since the order to give the Court reason to believe the Spanish Court would make a different decision upon the children's return.

The Father's defence of acquiescence was not made out as there was no evidence the Mother was not telling the truth that she was unaware of Hague Convention and it was clear from her actions taken in Spain, with a view to recovering children, that she was not acquiescing. The court felt it unnecessary to deal with the Father's third defence save as to say that a high degree of intolerability was required for the defence to be established and the Father did not come anywhere near.

Mother's application for summary return dismissed.

Digest prepared by Lynsey Cade-Davies

Read the full text of the judgment here