Mother loses appeal against child residence dispute rulings

News|March 21st 2014

A mother who took her nine year-old daughter to Spain without the father’s permission has lost her appeal against a ruling that she had wrongfully detained the child.

In Re SJ, the woman had originally taken her daughter to Gibraltar with the father’s permission, although he claimed this was for a limited period only. He withdrew his consent when she travelled on to Spain. When she then declined to return the girl to England, he launched legal proceedings.

The English courts ruled that the girl was habitually resident in England. The mother then claimed that the father had sexually abused the child and unsuccessfully applied to the Spanish courts for protection. Meanwhile, the father’s proceedings were transferred to the High Court.

The High Court judge ruled that the mother had wrongfully kept her daughter in Spain and that the English courts had jurisdiction in the case.

Meanwhile, the father launched an application in Spain for his daughter’s return under the Hague Convention on the Civil Aspects of International Child Abduction, an international treaty to which both England and Spain are signatories. The Spanish court refused the father’s applications but also ceded jurisdiction in the case to the English courts. The father appealed.

Separately the mother applied to set aside the High Court rulings but she was unsuccessful. Mrs Justice Parker said:

“I do not accept that [the girl] can be habitually resident in Spain just because she has been there for over a year during this legal process.  [The father] has parental responsibility.  He had a right to be consulted.  The mother could not lawfully move her without his agreement, whatever the position with regard to her habitual residence.  The move was surreptitious and unilateral.  He had requested [his daughter]’s return and she was moved and then retained.  She had been in Spain for a very short time when the father started his proceedings in England.”

The judge added that the father’s application for a return order in the English courts had to be adjourned, until the Spanish courts clarified their reasons for refusing his Hague Convention application.

Photo of Gibraltar by Steve via Wikipedia under a Creative Commons licence 

Author: Stowe Family Law

Comments(3)

  1. Anon1 says:

    This ruling would appear to be somewhat contradictory to http://www.bailii.org/ew/cases/EWHC/Fam/2013/4149.html .

    While I agree with the ruling your article, I am not sure how both rulings can stand when they are so diametrically opposed.

  2. Andrew says:

    That unlawful and unilateral abduction is reversed by the courts should not even be news. And after-the-event allegations of sexual abuse should be ignored unless there is strong neutral evidence to support them and a very good explanation why they were not made at the time but kept back for later (mis)use.

  3. Luke says:

    It’s a no-brainer decision, the mother’s position in this case is indefensible.

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