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EF v MGS [2011] EWHC 3139 (Fam)

Application under the 1980 Hague Convention for return of a child to Spain in which the central issue was whether the child, P, was habitually resident in Spain.

The parties, P's parents, were not married but had lived in a settled relationship for 18 years prior to separating in July 2011. Both parents and P were Spanish citizens and had hitherto mainly resided in Spain. In 2008 the father's employers offered him the opportunity to work in Portsmouth on a fixed term contact of almost two years. The parents agreed to take the opportunity and the mother took a leave of absence from her employment before the family came to England, where they remained. In April 2011 the father was offered a further two year contact and the mother reluctantly agreed.

In July 2011 the parents' relationship broke down and the mother returned to Spain with P. The mother contended that the father had subsequently agreed for P to return to his school in Spain, relying on that agreement as evidencing consent to a change of P's habitual residence. In mid-August 2011 the mother brought P to England and left him with the father, intending to collect him in early September. However, in the mother's absence the father obtained a prohibited steps order preventing the mother from removing P. M responded with her application under the Hague Convention.

It was common ground that if P was habitually resident in Spain, then the retention was wrongful. The question therefore was whether P was habitually resident at the time of the retention in August 2011. Holman J was clear that the family had ceased to be habitually resident in Spain by July 2011, relying on factors such as the agreement for the father to extend his working contract, selecting a school for P and the mother extending her leave of absence in Spain and increasing her employment in England. His Lordship was not satisfied that the father had consented to P returning to Spain thereafter, and therefore any unilateral action by the mother could not change P's habitual residence. The mother's application was therefore dismissed.

Summary by Stephen Jarmain, barrister, 1 Garden Court Family Law Chambers


No. FD11P02076
Neutral Citation Number: [2011] EWCH 3139 (Fam)

Royal Courts of Justice
Friday, 18th November 2011


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B E T W E E N :

E F 

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M G S 

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Transcribed by BEVERLEY F. NUNNERY & CO
Official Shorthand Writers and Tape Transcribers
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MISS J. RENTON  (instructed by Ellis Jones) appeared on behalf of the Applicant/mother.
MR E. DEVEREUX (instructed by Access Law) appeared on behalf of the Respondent/father.
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The issue
1. On 17 August 2011 a mother travelled with the parties' son from Spain to England and left him with his father in England.  The mother expected to collect him and return with him to Spain on 10/11 September 2011. 

2. On 26 August 2011, while the child was present in England, the father made a without notice application to the Portsmouth County Court for a prohibited steps and residence order.  On that date a district judge made an order prohibiting the mother from removing the child from England and Wales until further order.  The express purpose of the father's application was to prevent the return of the child to Spain on 11 September 2011, with a view to the child remaining here and going to school here in September.  The district judge fixed a further hearing date for 12 September 2011. 

3. On 12 September 2011 the mother made plain that she intended to issue an application in the High Court for the return of the child to Spain under the Hague Convention on the Civil Aspects of International Child Abduction.  The circuit judge accordingly stayed the proceedings in the Portsmouth County Court.  The prohibited steps order was discharged on the mother's undertaking not to remove the child from England and Wales until further order (save for certain agreed periods of contact in Spain). 

4. On 15 September 2011 the mother duly issued her present application in this court for an order for the return of the child forthwith to Spain, pursuant to the Hague Convention. 

5. The primary purpose of the Hague Convention is to ensure the prompt return to the state of their habitual residence of children who have been wrongly removed or retained from that state: see the preamble to the convention and the scheme and provisions of the convention generally.  It is common ground between the parties and their experienced counsel in this field that if the convention is engaged at all, then this is a case of wrongful retention. 

6. The retention occurred on 26 August 2011 when the father evinced an intention not to return (or permit the return of) the child to Spain on 11 September 2011, and took steps to prevent that happening by obtaining the prohibited steps order from the Portsmouth County Court. 

7. It is also common ground that the sole issue that arises for determination on this application is whether, on 26 August 2011, the child was habitually resident in Spain.  If he was so resident, then there was a wrongful retention and I must order his return forthwith.  If he was not so resident, then the convention is not engaged at all although both parents may, of course, pursue a range of other remedies under the Children Act 1989. 

8. The father does in fact go further and positively contends that the child had previously become habitually resident in England and Wales and was still habitually resident here on 26 August 2011.  The true and actual question is, however, not whether he was habitually resident here, but whether he was habitually resident in Spain on that date. 

9. Miss Jacqueline Renton, who appears on behalf of the mother, concedes that the burden of proof is upon the mother, as applicant, to establish on a balance of probability that the child was, on the facts of the case and applying the correct legal principles or approach, habitually resident in Spain on 26 August 2011. 

10. The father does not now rely on any other defence, whether under Article 13 of the convention, or upon the applicability of any other of the requirements or ingredients of Articles 3, 5, 12 or generally.  The child, still aged six, was seen by a child and family reporter on 18 October 2011, but the officer reports (now at bundle page C1 to 5) that he could not elicit the child's views about returning to Spain and that he presented at the interview as being younger than his chronological age. 

Rights of custody
11. The parents, who are both Spanish, lived together for eighteen years (with some short separations) in a settled, quasi marital relationship from 1993 until a breakdown in July 2011.  Their only child was born in 2004.  The mother has expressly accepted and conceded that, for all purposes connected with the present application, including consideration of any capacity to change the habitual residence of a young child, I should proceed as if the parents were, before the child was born, and still are, married to each other.  I should assume that under both English and Spanish law each had, and has, identical parental responsibility and/or custodial and related rights, subject of course to any court orders which may yet be made here or in Spain.  

The facts
12. Until the very end of the relevant history, in the period mid-July to mid-August 2011, the essential facts are substantially agreed and I shall simply narrate them with little reference to the underlying evidence or documents. 

13. Both parents are Spanish, born and brought up in the Guadalajara area of Spain in which several of their respective extended families still live.  The parents and child are all nationals of Spain and of no other country.  Both parents are now aged forty-three.  They met and have lived together in an apparently permanent relationship since 1993.  For a long time each has owned (and still does own) a home in Guadalajara, although they actually lived in the property belonging to the father.  For a period they lived together in America when the father was assigned there by his employers. 

14. Both parents are highly intelligent, educated and articulate people.  The father is an engineer who has worked for many years for a Spanish firm, Indra, in the field of air traffic control technology.  The mother most recently worked for some years in Spain under a permanent contract in her local Social Welfare Department as a social education officer.  Their only son, Pedro G F, was born on 28 November 2004 and will be seven at the end of next week. 

15. During 2008 the father's employers offered him the opportunity of moving to work for them in the Portsmouth area of England, for an initially fixed term of (almost) two years from August 2009 to 30 June 2011.  After discussion between the parents the father decided, with the agreement of the mother, to accept the offer.  Both parents agreed that it afforded a good opportunity for Pedro to learn some English, immersed in an English school, and generally that it would be an enriching experience for all of them.  The mother's employers in Spain granted her express voluntary leave of absence from 1 August 2009 to 31 July 2011 by reference to various workers' rights as recorded in the document now at bundle page B14 (here and generally I refer to the page of the English translation of any Spanish documents).  The mother's job was kept open for her until that date. 

16. On 15 August 2009 the parents, with Pedro, all moved to live in England in a rented home in North Boarhunt near Fareham in Hampshire.  The mother's own property in Spain was rented out.  The father's property was not rented out, but was closed down.  They sold one of their cars in Spain and stored the other.  They bought two cars in England.  Pedro began at a school here.  In November 2009 all three were registered with the Wickham Group Surgery. 

17. Between October 2009 and February 2010 there was a rift in their relationship.  They occupied separate bedrooms, but remained living in the same home and were reconciled in February 2010. 

18. In May 2010 they sought and obtained an offer of an English mortgage in the sum of £187,500, but they did not, in the event, buy a house. 

19. During the summer of 2010 they moved to another rented property (it was smaller with lower overheads) at 7 Mill Lane, Wickham, where the father still lives. 

20. In October 2010 both parents' names were enrolled on the electoral roll for 2011 for the address at Mill Lane, although their registration on a similar roll in Spain persists. 

21. During 2010 they made visits to Spain and also some family members visited them in England. 

22. In February 2011 the mother commenced her first job here, as a part time children's nursery assistant.  She says that she waited until her English was good enough before seeking any employment. 

23. On 10 February 2011 they both signed a formal application for Pedro to be admitted to a school in Spain in the Autumn 2011, giving his former school, Pedro Sanz Vazquez, in Guadalajara as their first choice (see bundle page B7 and 8).  This was, of course, an important step, as at that stage they did not know whether the father's contract in England would be extended beyond August.  The various stages of the school admissions process in Spain are set out in a document now at bundle page B119, which shows that actual registration in the assigned school would take place in the period 20-30 June. 

24. As late as February 2011 the parties were clearly still considering buying a property in the Wickham area, as the mother sent two emails to the father (now at bundle page B459A and 460).  One attached links to various properties, the other attached links to recent comparables to 7 Mill Lane. 

25. In March 2011 the mother started teaching Spanish to students in addition to her nursery work. 

26. In April 2011 the father was offered the opportunity by his employers to extend his term in England by a further two years until summer 2013.  It is clear that the father wished to accept this, but the mother was much less keen and would have preferred to return to Spain. 

27. During May 2011 the father was under increasing pressure from his employers to make a decision.  As between the parents, the issue came to a head on Tuesday 31 May 2011, and it is sufficient to say that the mother does now agree (as Miss Renton expressly said on instructions) that on 31 May 2011 she did, however reluctantly, definitely agree with the father that he could accept the further extension.  She agreed that all three of them would continue to live in England in the Wickham area for a further two years until summer 2013, during which time of course Pedro would continue to go to school in England. 

28. The mother says that she then had a very sleepless night on the night of 31 May 2011, but accepts also that she was present in their living room on the evening of   1 June 2011 when, to her knowledge, the father sent the email to his employers (now at bundle page B86) in which he said that they had finally decided to stay here and, in effect, he accepted the offer of the further two years.
29. The pressures and conflicts which the mother felt at that time are evidenced by an email the mother sent to the father at 8.19am on Thursday 2 June 2011 (now at bundle page B88) which refers to her fears and another night almost without sleep, but continues: 

"I know we have taken a decision seeking the best for the three of us and that I have allowed myself to be carried away by my fears...I need you now more than ever.  I love you..."

30. Consistent with their decision, the parties applied during June 2011 for new schools in England for Pedro from September 2011 (his then school was, I understand, due to close). 

31. On 9 June 2011 the mother took Pedro for an assessment at Portsmouth Grammar School after which he was offered a place there, but the parents also visited and preferred a school called Boundary Oak in Fareham.  On 21 June 2011 they both signed a registration form (now at bundle page B128) for him to start there in September 2011 and paid a non-refundable registration fee of £50 and a returnable deposit or confirmation fee of £200.   

32. On 22 June 2011 the mother sent an email (now at bundle page B472) to a friend called Vicky Martin in which she clearly said:

"Yes, we will be living here for two more years so I hope we can share more time with our children and of course ourselves."

She continued "We are going to Spain for holidays in the middle of July" but that some proposed Spanish lessons for a friend could be arranged.  Also during June (the precise date is unclear) the mother contacted and obtained an ID and registration number with a firm called Net Ex-Pat, who provide employment opportunities here (see bundle page B91). 

33. Early in July 2011 the mother received a contract to teach Spanish over an eighteen week period to December 2011 to staff of Indra in the Portsmouth area (see bundle page B93-104). 

34. On 23 June 2011 the mother bought return tickets for both parents and Pedro all to fly to Spain on 16 July 2011 with the return portion for the father on 1 August 2011 (when he had to resume work) and for herself and Pedro on 17 August 2011. 

35. On 4 July 2011 the mother purchased the school uniform for Boundary Oak School.  Also on 4 July 2011 she obtained an extension of her voluntary leave from her employers in Spain for a further two years until 31 July 2013 (see now bundle page B113). 

36. Very sadly, there was a big argument between the parents on the evening of 4 July 2011 from which their relationship has clearly not since recovered.  From that date their united approach began to change. 

Did Pedro ever cease to be habitually resident in Spain?
37. Until the parents and Pedro moved to live here in August 2009 they and he were, of course, all clearly habitually resident in Spain.  So the first question is:  Did they, and specifically he, ever cease to be so resident?  I address and rule upon that question at this point in the narrative since, if he did ever cease to be habitually resident in Spain, he had ceased to be so resident earlier than 5 July 2011 (the date I have now reached in the narrative).  If he was still habitually resident in Spain on and up to 4 July 2011, then nothing which happened thereafter could possibly have subsequently terminated his continued habitual resident in Spain.  Conversely, if he was not habitually resident in Spain on 4 July 2011, then he could not have become habitually resident there again before (at the earliest) late July 2011, as I will later explain. 

38. The question whether on or before 4 July 2011 he had ceased to be habitually resident in Spain accordingly falls logically and chronologically to be considered at this point and ought not to be affected by subsequent events after the big argument on the evening of 4 July 2011. 

39. The ultimate question in these proceedings is (as I have repeatedly said) whether or not on 26 August 2011 Pedro was habitually resident in Spain, not whether or not on that date he was habitually resident in England and Wales.  It is perfectly possible for a person not to be habitually resident anywhere.  Indeed, as habitual residence in one country may cease the moment a person leaves that country with no intention of returning to live there, but acquisition of habitual residence in another country requires residence there for an "appreciable" period (even if that period may sometimes be short), it may frequently happen that during the "appreciable period" the person is not habitually resident anywhere.  Nomads, round the world yachtsmen, and students on a long gap year may also have no habitual residence for substantial periods of time.  That said, both counsel have, on the facts of this case, treated the issue of loss of habitual residence in Spain as being binary with the question whether Pedro ever became habitually resident in England. 

40. This family were not nomads, yachtsmen, students or (in the period I am now considering) in the process of transit between two countries, and it would be unreal to regard them during the whole of the period August 2009 to July 2011 as not being habitually resident anywhere.  It is not of course necessary to identify any particular date when the change occurred.  The question at this stage of this judgment is: Did the parents and Pedro at some stage prior to 5 July 2011 cease to be habitually resident in Spain and become, at that stage and during that period, habitually resident here? 

41. The two words "habitually resident" have generated (and appear still to generate) much legal argument in courts of every level, here and internationally, and hundreds if not thousands of pages of law reports.  During the present hearing I have been particularly referred to the authorities of Re P-J (Abduction: Habitual Residence: Consent) [2009] EWCA Civ. 588; [2009] 2 FLR 1051 in which there is copious reference to the relevant previous authority; the judgment of the Court of Justice of the European Union in Mercredi v Chaffe (Case C-497/10) [2011] 1FLR 1293; and the recent decision of the Court of Appeal in H-K (Children) [2011] EWCA Civ. 1100, in which judgment was given on 10 October 2011 and in which Ward LJ (with whom the other members of the court agreed) discussed Mercredi v Chaffe and the impact of that judgment (which concerns jurisdiction under Council Regulation EC 2201/2003) upon the stream of authority as to the meaning of habitual residence in the context of the Hague Convention, which is not itself an instrument of the European Union. 

42. The Court of Appeal in both the above cases draw heavily also on the famous passage in the speech of Lord Scarman in Barnet LBC v. Shah [1983] 2 AC 309 at 343G.  

43. From these authorities I extract and will apply the following propositions of law which are relevant to, and sufficient for, the question I am currently deciding (they can all be found in paragraph 26 of P-J or Shah quoted therein). 

44. The expression "habitual residence" is not to be treated as a term of art, but is to be understood according to the ordinary and natural meaning of the two words.  These cases are all fact specific and are to be decided by reference to all the relevant circumstances of the particular case, although the answer may depend more upon evidence of matters susceptible of objective proof than upon evidence of state of mind. 

45. For present purposes, what Lord Scarman said in Shah applies as well to habitual as to ordinary residence and is therefore in point.  Habitual residence refers to (i) a person's abode in a particular country, which (ii) he has adopted voluntarily and (iii) for settled purposes as (iv) part of the regular order of his life (v) for the time being, whether of short or long duration.  There is a significant difference between ceasing to be habitually resident in one country, A, and becoming habitually resident in another, B.  An appreciable period and a settled intention is required before becoming so resident in country B.  But the period of time, although "appreciable", may (and does) vary from case to case from a relatively few weeks or even days to a much longer period or, indeed, never.
46. The Court of Justice of the European Union in Mercredi v Chaffe required "that the residence must have a certain permanence or regularity" (paragraph 44).  They said in paragraph 49 that the presence must not be "in any way temporary or intermittent".  At paragraph 51, they said:

" order to distinguish habitual residence from mere temporary presence, the former must as a general rule have a certain duration which reflects an adequate degree of permanence."

Thus, the word "permanence" is not used by the Court of Justice of the European Union in the sense of "forever" or even necessarily "indefinite".  The contrast is with temporary.  At paragraph 47 and repeated at paragraph 56 that court said that the concept of habitual residence (for the purpose of the Council Regulation they were considering) "must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment."    (See also the observations of Ward LJ in paragraph 17 of H-K commenting upon Mercredi v Chaffe.) 

47. The facts of H-K itself illustrate that a person or family may (I stress, only may) establish habitual residence in a place "if only for a temporary stay of twelve months" (see paragraph 23). 

48. Finally, in the case of a young child of married parents (as I am treating these parents as being) living together as a family, the child's habitual residence is the same as that of the parents themselves.  On the facts of the present case these three people (parents and child) moved and functioned together as a family unit in the whole period August 2009 to 4 July 2011 (albeit with a period of some separation within the home in 2009 to 2010).  They may at different times have had differing hopes, aspirations or desires (in particular as to the extension decision in May 2011) but, as in many families, there was give and take and compromise.  In the period I am now considering, the habitual residence of all three of them must, at any given time, have been the same. 

49. Applying the above propositions of law to the facts as I have described them, it is, to my mind, frankly clear that prior to July 2011 this family, and therefore this child, had "for the time being" ceased to be habitually resident in Spain and had become habitually resident in England.  I do not need to identify the "appreciable period" after which, or any precise date upon which, they became so resident.  In my view, they were already habitually resident here by some point in the period before 31 May 2011, even if they had remained due to return permanently to Spain in July/August 2011. 

50. But even if there be doubt about that, or if I am wrong about that, then the clincher is the agreed decision on 31 May 2011 to remain here as a family for a further two years, and the steps I have described which were taken during June 2011 in implementation of that decision:  selecting a school and registering Pedro in it for the year 2011/2012; buying the uniform; the mother taking on increasing employment opportunities of her own here and extending by a further two years her voluntary leave from her job in Spain.  When the mother bought the return tickets from England to Spain and back on 23 June 2011, she was clearly doing so at that stage on the basis of a holiday period only, before the father resumed work in England in early August and she and Pedro resumed work or school here in September. 

51. At paragraph 16 of her written skeleton argument and again in her powerful oral submissions, Miss Renton rightly emphasised a number of connecting factors which remained with Spain.  The father's contract in England was for an initial two year period only, and the mother's own employment in Spain was merely suspended for two years.  Many family and friends, and what Miss Renton called the "support network", remain in Spain.  The parties retained their properties (and one car) there, and merely rented, and in the event never purchased, a property in England.  Although registered with a GP practice here, the parties and Pedro remained registered also in Spain, and it was on visits to Spain that Pedro had his MMR vaccination and some dental treatment or check-ups.  The parties remained registered on the municipal census/electoral register in Spain.  They were, of course, throughout citizens only of Spain, and it was clearly to Spain that they would always return sooner or later to live. 

52. I accept the force of all these points or factors, although they may be countered by a similar list of points made by Mr Edward Devereux on behalf of the father in paragraph 67 of his own written case summary, which I will not reproduce here. 

53. Once it is clear, as it is from the authorities, that the residence must be more than merely temporary, but need not be permanent in the sense of forever or even indefinite, then it is, to my mind, clear that these parents moved their abode voluntarily to England, for settled purposes (the two year employment contract and the associated educational and other opportunities for Pedro and themselves), as part of the regular order of their lives, for the time being, for a duration which was more than merely temporary.  There was, without doubt, in the language of the judgment in Mercredi v Chaffe, some degree of integration by the parents and Pedro in a social and family environment in England.  They had a settled, even if rented, home here.  Pedro was settled in a school here and arrangements were later made for his schooling into 2013.  All three of them made friends here.  To borrow a phrase from paragraph 22 of the judgment of Ward LJ in H-K: "It was, for the time being, a settled way of life." 

The period from 5 July - 26 August 2011
54. There is much common ground as to the facts in this period, too, although some contention in particular as to what was said during, or shortly after, a fourth mediation session in Spain on 25 July 2011.  At paragraph 51 of her statement (now at bundle page B218) the mother wrote that during that session: 

"The father confirmed to me that Pedro should return to the [Pedro Sanz Vazquez] school as he still has friends there." 

She claims to have treated that (and his subsequent actions) as his consent to Pedro now remaining in Spain and that, accordingly, Pedro's habitual residence in Spain resumed soon after that date. 

55. The father denies saying that during the mediation, and claims that, during a conversation a day or two later in his house in Spain, what he actually said was that if Pedro remains in Spain, then it is to the Pedro Sanz Vazquez School that he should go.  The father denies that he has ever agreed to Pedro remaining, or ever accepted that Pedro will remain, in Spain. 

56. Since these conflicts seemed to me to go to the heart of what I now need to decide, I decided to hear time limited (but I think adequate) oral evidence from both parents, limited to this period of the history alone.  It was very illuminating.  I observed, as I have already recorded, that both parents are highly intelligent and articulate.  The mother needed some assistance from the interpreter, but was able also to understand many questions and give many answers in English.  Her evidence did not suffer from any lack of clarity in expression or comprehension.  However, as between the two of them, I have to record that her evidence was the less clear and reliable in her recollection, and was, to a degree, tinged by her now refashioning events in her mind as she would wish them to have been, rather than as they necessarily actually were. 

57. The father is a more shrewd, meticulous and indeed calculating person.  I have no doubt that at all times during the relevant period he was very careful about what he both did say and did not say, and is now very clear, and indeed accurate, in his recollection. 

58. Having thus commented on the parties as witnesses, I now resume the narrative. 

59. After the argument on the evening of 4 July 2011 the parties again moved into separate bedrooms, although they remained together in Mill Lane, and, I am confident, retained as civilised and normal a veneer as possible in the presence of Pedro. 

60. On 5 July the mother telephoned her employers in Spain and asked to be able to resume her job there in August 2011.  But early on 6 July 2011 she sent an email (now at bundle page B155) in which she now requested them:

" reverse my application for reinstatement and that my request for two additional unpaid leave years until June 2013 is considered." 

That shows her inner turmoil.  It is, I think, clear that from 5 July 2011 onwards she badly wished to return to live in Spain with Pedro, and the father knew this. 

61. On 11 July 2011 (or possibly on 12 or 13 July) the father gave to the mother a document (now at bundle page B450-453) headed "First draft of conditions", which is a detailed and methodical analysis of their and Pedro's positions and options.  It contemplates a range of different outcomes:  Mother and Pedro both living together in Spain; mother and Pedro both living together in England, but living separate from the father; the father and Pedro both living together in England and the mother in Spain; the father and Pedro living together in England and the mother also living in England, but separate from them.  It is clearly an options document and does not commit him or her to anything.  It concludes: 

"The decision about whom Pedro stays with and where you stay must be taken in time to do as much as possible in Spain while we are there."

62. On 15 July 2011 the mother sent to the father an email (now at bundle page B163) to which she attached a template separation agreement which she had downloaded from the internet.  The email refers to "shared custody" and continues:

"Perhaps we could think it through together and then talk to a mediator to properly settle the conditions and don't do anything illegal...I sincerely believe that every attempt of agreement between us is the best we can do for Pedro now."

Clearly at that stage, on the eve of their travelling together to Spain, there was no agreement.  I would like to comment that I do believe that in the agony and turmoil of the breakdown of their own relationship, each of these parents remained, and remains, very focused on what they respectively think is the best for Pedro, although many other issues with regard to financial and practical matters require to be resolved as well. 

63. The family was, of course, already committed to flying to Spain on Saturday 16 July 2011.  They actually left home early that morning and travelled together by train to Gatwick and by plane to Spain, and they all moved in together to the father's house.  The clear reality is that nothing had been seriously discussed, resolved or agreed; and, as they travelled from England to Spain, their situation was one of conflict, indecision and uncertainty as to outcome.  Further, the mother does now expressly accept (through Miss Renton on instructions) that at no time prior to the fourth mediation session on 25 July 2011 did the father accept that Pedro might resume living in Spain. 

64. The parties did agree to participate in a mediation process with state appointed mediators, and there were four sessions on Monday, Tuesday and Wednesday 18, 19 and 20 July 2011 and on Monday 25 July 2011.  Rather regrettably, there was not a mediator common to all four sessions.  During the second or third session both parties were advised by the mediators to obtain some legal advice.  The mother did speak on the telephone to a lawyer in Spain.  The father spoke on the telephone to a lawyer in England and also saw a lawyer in Spain. 

65. The parents then attended the fourth and, as it turned out, the final session on 25 July 2011.  It only lasted about twenty minutes.  In her oral evidence in chief to me, the mother did repeat her written account of her asking what school Pedro should attend in Spain and the father replying that he should go back to Aneja (an informal name for the Pedro Sanz Vazquez school) with his friends.  She said that she knew that after speaking to his lawyer he had to accept that Pedro would live with her.  She believed that he accepted that Pedro would live with her in Spain and go back to his old school there.  During cross examination, however, the mother said of this session that the father never said "Yes" and he never said "No".  She said the mediation was stopped after twenty minutes because the mediators could not help them: 

"We had different opinions.  We had no new information from the lawyers and therefore the custody will be with me as we did not have agreement or a joint opinion."

She said, although she did not in fact know the content of whatever legal advice the father had received, that: "We both believed that if we had no agreement the custody would be with me".  (This, I stress, is not based on the absence of a marriage, but on her position as a mother with fewer working hours than the father.)  She said at the end of her evidence that the mediators told them that, as there was no formal agreement, the mediators could not give them any point by point agreement to take to the lawyers.  Nothing at all was written down during, after, or as a result of the mediation.   

66. The father agreed that the mediation was completely inconclusive with no agreement.  He said that it was later in his house that the mother asked him about choice of school in Spain, and that he was careful to say that if, stressing the "if", Pedro remained in Spain then he should return to his old school there. 

67. On this issue I am satisfied on the balance of probability that it was after, rather than during, the mediation that the conversation about choice of school took place.  I am satisfied that the father was careful to use the conditional "if".  He is, as I have said, a shrewd and calculating man.  He had already received legal advice, as he has now told me, both in Spain and from England that the child was still habitually resident in England, and also that a court in Spain would be likely to be "more favourable" to the mother than would a court here.  He already had a plan, therefore, to wait until Pedro returned to England on 17 August 2011 and then to commence proceedings here, as he was later to do.  I think the father would have been very careful to use the conditional "if", but also not to stress it.  He did not want to compromise his position by agreeing to Pedro remaining in Spain, but he was also very anxious, and very careful, not to do, or say, anything which might deter the mother from bringing Pedro back to England on 17 August 2011 as planned. 

68. On the first morning of the hearing this week, the mother produced statements from two people in Spain, her sister and a friend called Juana G, which refer to conversations in Spain on 25 and 26 July 2011 respectively.  The sister says that on 25 July 2011 the father told her:

"[The mother] will stay in Spain with Pedro and I'll stay over there [viz in England] for two years."

Juana G says that on 26 July 2011, in her presence, the mother made statements to the effect that Pedro would be staying in Spain and that the father, who was also present, "did not assent to or deny this".    I do not overlook those statements, but they were produced very late and were not the subject of any evidence by the parents themselves.  At a summary hearing, as proceedings under the convention essentially remain, I base my decision primarily on the evidence of the parents themselves and any available objective material. 

69. The father returned to England as planned on 1 August 2011 and resumed his work here.  The mother sent him two emails on 8 August 2011.   The first (now at bundle page B308) refers to picking Pedro up again on 10 September 2011 and flying back to Spain on 11 September 2011.  The second (now at bundle page B169) enclosed a draft of a separation agreement prepared by the mother, but modelled on one obtained online.  The draft agreement provides for Pedro to live with her in Spain, but the email begins:  "...I have not consulted with anyone, so I ask you to make any suggestions you deem appropriate..."

70. On 11 August 2011 the mother sent another email (now at bundle page B303) which again refers to Pedro having a ticket (viz to return to Spain) for 11 September 2011. 

71. On 16 August 2011 the mother sent another email (now at bundle page B185) which refers to their telling Pedro together about his parents' separation (he did not yet appreciate what was going on) and that they would be giving him "the good news" that he would be coming back to his school and friends in Spain. 

72. The father replied to these various emails, but was deliberately careful not to comment one way or another on those comments which referred to 11 September or return to Spain. 

73. The mother duly brought Pedro to England on 17 August 2011, stayed a few days and then returned to Spain on 21 August 2011.  Pedro remained here, and the father made his application to the Portsmouth County Court on 26 August 2011. 

74. It is now necessary to add to the above propositions of law another.  At paragraph 26(6) of his judgment in Re P-J, Ward LJ said as follows: 

"Habitual residence of young children of married parents all living together as a family is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court: see Lord Donaldson MR in In Re: J at page 572C approved by this court, inter alia in Re: M (Abduction: Habitual Residence) [1996] 1 FLR 887."

There are many references in other authorities, both here and in Australia, to "the express or tacit consent" of the other, all ultimately attributed to, or apparently derived from, Lord Donaldson in that referenced passage in Re J.  What Lord Donaldson actually said in the passage referred to in [1990] 2 AC 562 at 572C is as follows: 

"It must be pointed out that the case with which we are concerned is unusual in that the mother is an unmarried mother and, under the law of Western Australia, the father has no rights whatever until the court gives them to him.  But, in the ordinary case of a married couple, in my judgment, it would not be possible for one parent unilaterally to terminate the habitual residence of the child by removing the child from the jurisdiction wrongfully and in breach of the other parent's rights.  Accordingly this decision cannot be applied in the ordinary case of the married couple."

Lord Justice Staughton and Sir Roger Ormrod agreed with him. 

75. I have been unable to find (nor have either counsel been able to find) any reference by Lord Donaldson in that case, or indeed by Lord Brandon of Oakbrook in the same case in the House of Lords, to "express or tacit consent";  and neither of the experienced counsel have been able to find any authority in which the decision actually turned on "tacit consent" to a change of habitual residence.  It thus appears to be a somewhat open question whether, and, if so, what, consent short of express or clearly implicit consent by one parent is sufficient for a change by the other parent of a young child's habitual residence. 

76. In the field of the Hague Convention there may be some analogy with the nature or quality of a consent which is required to be established under Article 13(a) as a (discretionary) defence to return forthwith under Article 12.  If the mother had not brought Pedro back here on 17 August 2011, but had kept him in Spain; and if the father had then brought proceedings under the convention in Spain claiming that the mother had wrongfully retained him there, then the mother would certainly have claimed (amongst possible other defences) that the father had consented to his remaining in Spain.  Assuming the approach in Spain to be the same as here, the mother would have to have established that the father's consent to the retention was "clear and unequivocal" (see Ward LJ in Re P-J at paragraph 48(1)), although:

"Consent, or the lack of it, must be viewed in the context of the realities of family life, or more precisely, in the context of the realities of the disintegration of family life.  It is not to be viewed in the context of nor governed by the law of contract." (paragraph 48 (5))

Those propositions merely repeat what I believe to have been the very well established approach of English courts to consent under the convention long before the decision in Re P-J itself. 

77. Informed by that approach, and applying the broad proposition stated by Lord Donaldson that in the ordinary case of a married couple (which I treat this couple as being) "it would not be possible for one parent unilaterally to terminate the habitual residence of the child", I now consider the facts as I have described and found them to be. 

78. I am, first, in no doubt that the father was never subjectively consenting or agreeing to Pedro remaining in Spain.  He very strongly and clearly desired at all material times that Pedro should remain living in England, either at home with him or at any rate nearby in a separate home with the mother, and he was (and remains) determined to achieve that if he can.  Second, I am in no doubt that the father never actually expressed his agreement or consent to the mother.  On the contrary, he was very careful indeed not to do so.  In the conversation about schools he was careful to use, although not to stress, the conditional "if".  Third, I do not consider that the father did any act or omission in the period 25 July - 26 August 2011 (both dates inclusive) sufficient to create (if such be sufficient) a tacit consent.  The true reality of this very sad case is that, as I have already said, the parties left England on 16 July 2011 with nothing seriously discussed, nothing resolved and nothing agreed.  There were serious discussions in Spain, namely the four mediation sessions.  But, as the mother herself has accepted, they ended, not in agreement, but in a continuing absence of agreement.  It is no doubt true that the mother would never have returned with Pedro to England on 17 August 2011 if she had foreseen all that was to ensue.  It is, in my view, equally true that the father would never have travelled meekly to Spain with Pedro in July if he had foreseen all that was to ensue.  He had said at the end of his conditions document (now at bundle page B452):

"The decision about whom Pedro stays with and where you stay must be taken in time to do as much as possible in Spain while we are there."

But it never was taken, and each, when it suited them, avoided forcing the issue.  Rather, each of them was engaged in a degree of manoeuvring, including the mother when she asked the somewhat indirect question about choice of school in Spain rather than the head on, direct question as to whether Pedro would live in Spain or in England. 

79. In my view, a conclusion that Pedro resumed his habitual residence in Spain in the period between 25 July 2011 (Miss Renton does not argue for any earlier date) and 17 August 2011 (upon which date he again became physically present in England) would indeed involve unilateral change by the mother and flies in the face of the realities of this case.  In my view, his habitual residence in England persists to this day.  But, even if that is not the case, I am not persuaded that on or before 26 August 2011 Pedro was habitually resident in Spain.  It follows that the application under the Hague Convention must be dismissed. 

80. I will direct that the stay is now removed from the pre-existing proceedings in the Portsmouth County Court, where any further disputes (including any application by the mother for permission now to relocate Pedro to Spain) should be resolved.