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AE & JE v M [2021] EWHC 1957 (Fam)

An application under the inherent jurisdiction by two teenage siblings seeking wardship orders including declarations as to their status and a variation of a child arrangements order.

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This judgment is the final instalment in long running litigation, preceded by Baker J (as he then was) reported as FE v MR & Ors [2017] EWHC 2298 (Fam) in September 2017,  [2020] EWHC 162 (Fam) in February 2020 and  [2020] EWCA Civ 1030 in August 2020. Ms Justice Russell was concerned with AE, rising 18 and JE aged 14. They had been caught in a jurisdictional standoff between the English and Spanish courts.  There is a long and complex litigation history. In brief, they have Spanish parents and proceedings commenced in Spain in 2013. At the end of 2013 the children and mother moved to England and have remained here. There have been conflicting proceedings brought by the father in Spain, and by the mother in England.

In 2020, Ms Justice Russell made a child arrangements order (CAO) that the children live in England and refused F's application under BIIa for registration and enforcement of an order of December 2018 made by a Spanish court that the children live with F in Spain. The English court provided for F to withdraw all family and criminal proceedings in Spain. F appealed to the Court of Appeal, and simultaneously applied to the Spanish Court for without notice orders,  seemingly without informing the Spanish Court of Ms Justice Russell's orders. The Spanish Court ordered that if the children travelled to Spain they should be detained by police and placed with F. The mother and children travelled to Canarias on holiday, unaware of the orders.

The judgment recounts the traumatic events of: their removal from an aeroplane; their detention; separation from their mother who was arrested; being forcibly placed with their father; fleeing to France where they met up with the mother only for a European Arrest Warrant having been activated. The mother was further arrested, and the children were placed in foster care. The children contacted a solicitor in England, and were made wards of court. With the support and cooperation of the British Embassy in France the children were eventually returned to the UK. The mother further applied to the Spanish Court for recognition and enforcement of the Order of Mrs Justice Russell, but this was dismissed. The children sought a new CAO that they live in England with their mother and have no contact with their father. They intend to apply for recognition and enforcement in Spain pursuant to the 1996 Hague Convention of 19th October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Convention) or to BIIa (as the application predated 31.12.2020) to end the children's current position whereby  they  are unable to travel to Spain for fear of being detained and forcible placed with their father again. The CAO and declarations as to habitual residence sought were made.

Case summary by Sarah Tyler, Barrister, Coram Chambers

For full case, please see BAILII