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K v K [2009] EWCA Civ 986

Application for permission to appeal, with appeal to follow, application of Spanish law in a case concerning two children who have been brought to the UK by their mother. Application allowed but appeal dismissed.

The parents were both English but moved to Spain and there met and had two children. In 2008 the mother left Spain with the children and returned to the UK. The father then issued an originating summons under the Hague Convention and Brussels II bis. An issue arose over whether the father had rights of custody and, on discovering that determination in the Spanish courts would take upwards of a year, King J directed that the issue of father's rights of custody should be determined as a preliminary issue in the UK courts. At that hearing the President, on reviewing the evidence of two Spanish legal experts, concluded that the Spanish courts would decline to apply the English view of custody for public policy reasons.

In refusing the appeal, Thorpe LJ supported the President and went further in stating that

"it is perfectly apparent to me that the father has rights of custody under the international and autonomous law of the Convention."

He also stated that the law had moved on since the 2003 decision in Re JB, which under similar circumstances reached a different conclusion, as the Children Act 2002 now accords automatic parental responsibility to the unmarried father if he is registered on the birth certificate.

Case No: B4/2009/1174
Neutral Citation Number: [2009] EWCA Civ 986

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 24th June 2009)

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K (Appellant)

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K (Respondent)

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(DAR Transcript of
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Mr Anelay QC  and  Mr Purdie (instructed by Messrs Duffield Harrison L) appeared on behalf of the Appellant.

Mr Scott-Manderson QC and Mr Hames (instructed by Messrs Jones Myers Partnership) appeared on behalf of the Respondent.
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Judgment (As Approved by the Court)
Crown Copyright©

Lord Justice Thorpe:
1. On 19 May 2009 the President of the Family Division was faced with the difficult task of deciding what would be the decision of the Supreme Court of Spain were it considering whether the domestic law of this jurisdiction in relation to the rights of an unmarried father of two children offended against Spanish public policy. 

2. The circumstances in which the President found himself faced with that decision are much easier to record.  The parties to these proceedings are in their thirties and each independently moved from this their homeland to Spain at the end of the last century or the beginning of this.  They met and set up home together.  Two children were born to their relationship, PM on 15 May 2002 and NO on 7 October 2003.  The relationship between the parents deteriorated and on 12 March the mother, without, I think, any notice to the father, took herself and the two children to her sister overnight and on the following day brought the children to this jurisdiction.  The father issued proceedings in the local court in Fuengirola on 3 June 2008.  Those proceedings have not progressed and no further reference need be made to them.  Perhaps more pertinently, in September the father approached the Spanish central authority, in consequence of which an originating summons was filed in this jurisdiction on 20 November 2008 under the 1980 Hague Abduction Convention and the Brussels Regulation II bis, seeking the peremptory return of the children to Spain.

3. The case was listed before Munby J by chance on 28 November 2008.  At that stage the mother’s defence to the originating application was restricted to a reliance on Article 13 of the Convention.  But Munby J had decided the reported case of Re: JB (Child Abduction) (Rights of Custody: Spain) [2004] 1 FLR 796 on 12 September 2003.  So by a remarkable feat of memory, five years later he remembered that experience and his determination that on very similar facts the father had failed to establish sufficient rights of custody under Article 3 of the Convention to succeed in a return application.  Accordingly Munby J suggested that the mother’s defence might be enlarged to challenge the father’s claim to have been exercising rights of custody on 13 March 2008.  The mother amended her case accordingly and her expanded defence came before King J, who considered requesting the parties to seek a declaration as to the father’s rights of custody from the relevant Spanish court pursuant to Article 15 of the Convention.  She requested my office to investigate what would be the procedural timetable, and with the assistance of the network judge for Spain, Judge Forcada, my office was able to report that an application for a declaration under Article 15 was unusual if not unprecedented in Spain and that it might well take upwards of a year to resolve.  Accordingly King J pragmatically decided that the extent of the father’s rights of custody in Spain should be determined as a preliminary issue by a judge here in London, guided by expert evidence as to the law of Spain. 

4. Following the directions that King J gave, expert opinion was obtained from Sr Cedillo for the father and Sr Munoz for the mother.  Subsequently they prepared a note of their respective positions and all that material was then filed and before the President, who also had the advantage of oral evidence from these two experts.  He also had the advantage of submissions from Ms Scriven QC for the mother and Mr Scott-Manderson QC for the father. 

5. Before considering the submissions below, I note that in the case of Re: JB, already cited, Mr Scott-Manderson, then junior counsel, was appearing for the respondent mother and he was there relying on the evidence of Sr Cedillo to the effect that the domestic law of Spain would apply the foreign law of England and Wales, since the children in question are British nationals and despite the fact that they have throughout their lives and prior to removal been habitually resident in Spain.  The opinion of Sr Cedillo in Re: JB was straightforward.  Spain would apply English law.  According to English law the unmarried father without parental responsibility-- and despite the fact that he enjoyed shared care -- did not have rights of custody.  For that proposition we have the decision again of Munby J in the case of in Re: C (Child Abduction) (Unmarried Father: Custody Rights) [2003] 1 WLR 493.  In this case of in Re: C, Munby J was not considering the custody rights of an unmarried father in the context of an originating application for return under the Convention, he was considering the father’s application for a declaration of wrongful removal under Article 15 of the Convention.  That was perhaps sought as a prelude to a possible application for a return order which would then have been issued in the state of the child’s temporary residence. 

6. In the case of JB Mr Scott-Manderson had only a written opinion from Sr Cedillo, which was clear to the effect that the fact that the father had registered the birth in Spain and that the father had Patria Potestad, did not carry the day, since, according to the law of England which was to be applied, he did not enjoy rights of custody.  The plaintiff father was given by Munby J the opportunity to file contrary expert evidence from a Sr Diaz, but in the event he did not avail himself of the opportunity and accordingly Munby J delivered judgment on the unchallenged evidence of Sr Cedillo. 

7. In the present case before the President, roles are reversed in that Mr Scott-Manderson is representing the plaintiff father and has enlisted Sr Cedillo in a plaintiff’s cause.  Sr Cedillo departs from the line that he had taken before Munby J in 2003 by reliance on a sophisticated submission that although Spain would apply the law of England and although the law of England is transparent – see in Re: C already cited – the public policy objection would be invoked in a Spanish court and in consequence the Spanish court would decline to apply the transparent law of England and Wales as being contrary to Spanish public policy.  He particularly invoked article 39.2 of the Spanish Constitution which provides that:

“The public powers shall also guarantee the integral protection of children, who are equal before the law, independently of their filiation, and of mothers, regardless of their marital status.  The law shall provide for the investigation of paternity.”

8. Fortunately for the President there was a considerable measure of agreement between Sr Cedillo and Sr Munoz.  As to the meaning and effect of article 39.2, the experts were agreed on the following propositions which were taken from leading legal texts:

“Spanish Public Order would avoid the application of foreign Laws in these cases:.

(1) foreign laws that allow excessively severe correction measures or measures contrary to the principle of equality

(2) foreign laws that arbitrarily deprive the father or mother of parental control and the right to relate with the child and Laws that attribute guardianship and custody without taking into account the interests of the minor”

The exceptions contained in paragraphs (3) and (4) that followed were agreed to be of no relevance to the case.  It seems that Sr Cedillo in his written contribution asserted that the public policy exception would follow from sub paragraph (2) above.  However in his oral evidence it seems that he suggested that equally under sub paragraph (1) Spanish public order would be invoked. 

9. We have before us the skeleton argument of Mr Scott-Manderson in the court below, and in paragraphs 12 and 13, equally paragraphs 42-48 inclusive, Mr Scott-Manderson emphasised that the court’s approach to the determination of whether or not a parent exercised rights of custody is a two stage process.  The first stage involves an investigation of the law of the state of habitual residence immediately prior to removal, and the second and ultimately decisive stage involves a consideration of what Mr Scott Manderson labelled the supranational concept.  Despite that submitted approach the issue was decided by the President solely on an evaluation of the father’s rights of custody according to the domestic law of Spain.  Mr Scott-Manderson explains that the President’s judgment must be understood in the context of the manner in which the trial before him proceeded.  All the emphasis was upon the resolution of the dispute between the two experts.  All the emphasis was upon the President’s determination of the law of Spain.  Despite the extent to which Mr Scott-Manderson had emphasised that the ultimate question had to be decided according to the autonomous law of the Convention, the President did not include within his judgment any reference to that ultimate stage or express any opinion on what were the father’s rights of custody, not according to the law of Spain, but according to the autonomous law of the Convention.

10. That Mr Scott-Manderson was correct in his presentation in the court below simply cannot be in doubt.   There is a clear line of authority in this jurisdiction to the effect that the ultimate determining factor must be the international law of the Convention.  That was clearly established in this court in the case of Hunter v Murrow [2005] EWCA Civ 976; [2005] 2 FLR 1119 at page one.  In the course of his judgment Dyson LJ said at paragraph 47:

“47. The next question is whether those rights are properly to be characterised as "rights of custody" within the meaning of articles 3 and 5(b) of the Convention.  I shall refer to this as "the Convention question".  This is a matter of international law and depends on the application of the autonomous meaning of the phrase "rights of custody".  Where, as in the present case, an application is made in the courts of England and Wales, the autonomous meaning is determined in accordance with English law as the law of the court whose jurisdiction has been invoked under the Convention.  But as Lord Browne-Wilkinson said in Re H (Abduction: Acquiescence) [1998] AC 72 at page 87F, the Convention cannot be construed differently in different jurisdictions: it must have the same meaning and effect under the laws of all Contracting States.  In R v Secretary of State for the Home Department, ex p Adan [2001] 2 AC 477 at page 517 when referring to the meaning of the Geneva Convention relating to the Status of Refugees, Lord Steyn said:

‘In practice it is left to national courts, faced with material disagreement on an issue of interpretation, to resolve it.  But in so doing it must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty.  And there can only be one true meaning.’”

11. So when the President delivered his judgment, holding that according to the law of Spain the English negative view of the father’s rights of custody would not be recognised and applied as offending Spanish public policy, he decided in a sense only the first stage of the issue before the court although he plainly gave a pointer to what would be his decision on the ultimate question of the father’s rights of custody under the autonomous international law. 

12. An application for permission was brought to this court and on 10 June Wall LJ ordered an oral hearing on notice with appeal to follow. 

13. In preparation for today’s sitting skeleton arguments have been filed by Mr Richard Anelay QC, who has taken over from Ms Scriven, and by Mr Scott Manderson. In presenting his argument Mr Anelay has asserted that the President was plainly wrong to conclude as he did in reliance on the evidence of Sr Cedillo when the decision is so plainly at variance with the line taken by Munby J in Re: JB and also is completely inconsistent with the decision of the Strasburg Court in B v United Kingdom, conveniently reported at [2000] 1 FLR 1.  Mr Scott-Manderson in his skeleton argument supports the President’s judgment by emphasising the care with which he reviewed the expert evidence and the rationality of the opinion offered by Sr Cedillo. 

14. I was surprised that both skeletons filed for the determination of this appeal concentrated purely on the question of what were the father’s rights of custody under the domestic law of Spain, and neither seemed to venture upon the ultimate ground: what were the father’s rights of custody according to the international and autonomous law of the Convention? 

15. However, Mr Scott-Manderson has drawn attention to a single paragraph of his skeleton which is in paragraph 16 and is to this effect:

“Ordinarily the rights arising under the domestic law of the State of habitual residence would then be considered in the light of the supranational meaning of the term ‘rights of custody’.” 

That is a statement which is correct beyond question, but it is not developed in any way within the skeleton and seems to be uneasily placed in a succession of paragraphs which submit that the President had adopted the correct approach at trial.  I am in no doubt that the President did adopt the correct approach at trial, as Mr Scott-Manderson suggests.  But the question of whether or not the ultimate issue was determined below receives nothing but this passing reference.  So the argument this morning has concentrated mainly on the issues addressed by the President below and the conclusions and the reasons that underlay his conclusion. 

16. So let me first focus on that issue.  Was it open to the President to decide in favour of the father as he did?  The answer to that is in my judgment apparent.  The President delivered a particularly full and conscientious judgment in which he set out the relevant provisions of Spanish law with great care.  He then turned to summarise the opinion of Sr Cedillo.  Not only did the expert rely on principle and legal commentaries of the greatest weight, but he referred to a number of decisions of the courts of appeal in Spain, all of which he submitted pointed in the same direction. 

17. To like effect the President reviewed the contrary opinion of Sr Munoz between paragraphs 57 and 67 of the judgment.  Decisively the President then recorded his conclusions, saying that he preferred the opinion of Sr Cedillo.  He recorded that the Spanish court would hold the law of England to be contrary to public policy in reliance on article 39(2) on two distinct grounds.  First, on the ground that the result would be discriminatory as between the children of unmarried parents and it would be manifestly contrary to Spanish public policy accordingly.  That is to apply sub paragraph (1) of the agreed text.  However, the President continued in the following paragraph to hold that “the application of English law in this case would have the effect of attributing custody of the children to the mother alone without taking into account their welfare interests as recognised and protected by Spanish law”.  There the President invokes the second limb of sub paragraph (2).  Mr Anelay’s endeavour to show that these conclusions were in some way closed from the President by the decision of the Court of Human Rights in the reported case of B v United Kingdom made no impact on me. 

18. The very simple conclusion to this appeal is that the President was faced with the difficult task of finding as a fact what would be the law of Spain, assuming that objection were taken to the applicable foreign law on the ground of public order.  His finding was based on very clear and extensive expert evidence.  He had to choose between two authoritative experts.  He preferred one, and explained clearly why he preferred that expert to the other.  His judgment is simply not open to challenge in this court. 

19. My Lord, Longmore LJ, made the observation during argument that if the ultimate question is what are the rights of custody under the international and autonomous law, the decision of Munby J in Re: JB was not in fact conclusive of the father’s application, since he did not look beyond the law of England.  Equally it could be said that the President might have relieved himself of the difficult task of determining the law of Spain because again that is only a preliminary step towards the decisive final question.  It is clear that authority in this jurisdiction and decisions in other jurisdictions (see the decision of the New Zealand Court of Appeal in Fairfax v Ireton, a judgment given on 24 March 2009) demonstrate the need for this two stage approach. 

20. In a sense the value of the President’s judgment below is that it concludes the issues at the first stage.  He was not asked to continue to determine the ultimate question.  However it is perfectly apparent to me that the father has rights of custody under the international and autonomous law of the Convention.  As was pointed out by Baragwanath J in the New Zealand authority to which I have referred:

“Increasingly and in different jurisdictions the relationship of the unmarried father with an abducted child is classified in domestic law as a right of custody rather than merely of access, and consideration is needed as to whether a change in construction of the Convention should follow.”

To like effect in paragraph 176:

“These factors evidence a fundamental change in attitudes to the relationship between child and father where the parents are unmarried. They enhance the importance to the child of the father and the status of the father’s role in relation to the child.”

21. Plainly the international and autonomous law of the Convention has moved significantly since the decisions of Munby J in the year 2003.  In our jurisdiction this shift is marked by the adoption of the Children Act 2002, which from 1 December 2003 accorded to the unmarried father automatic parental responsibility if registered on the birth certificate as the father.  It seems to me that in the world of 2008, when this removal occurred, this jurisdiction, and most searching for the extent of the father’s rights under the autonomous law, would hold that they constituted rights of custody within the meaning of Articles 3 and 5. 

22. Anything that I have said in relation to the father’s rights according to the autonomous law is by way of aside.  But it seems to me worth expressing that aside for possible influence on future cases and in the hope that it will speed the resolution of this now antiquated application which I am relieved to hear is to be listed before a judge of the Division tomorrow and on the next day for determination of the mother’s Article 13 defence.

Lord Justice Longmore:
23. I agree.

Mr Justice Bodey:
24. I too agree.

Order: Application granted; appeal dismissed