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High Court orders return of five year-old boy to Spain

The High Court has ordered the return of a five year-old boy to Spain after his father launched international legal proceedings.

In N (A Minor), the British mother and Moroccan father had met in Spain and lived together in that country. They had a child, called N in case reports, before separating in 2009. The mother had another child by an earlier relationship and later went on to have a third child.

After the couple split, they argued over parenting arrangements, before the mother flew back to England, leaving N with his father.

However, as a result of residence proceedings in Spain during 2011, the mother was awarded custody, along with permission to take her son back to England. The father appealed this ruling but the mother pushed ahead, seeking provisional enforcement of the original ruling allowing her to return to England, pending the outcome of her former partner’s appeal.

As part of her application, the mother gave the Spanish courts a ‘public commitment’ (legal undertaking] to obey the eventual outcome of the appeal, returning N to Spain if that was ordered.

At the High Court, Mr Justice Holman noted:

“On 20 December 2012 the Spanish appeal court (consisting of three judges) upheld the father’s appeal and ordered that custody of the child is granted to the father with shared joint parental authority (as before).  The child “shall have his domicile at” the father’s address in Spain.  The mother was given contact “whenever she comes to Spain” and also, in summary, for half each Christmas and summer school holidays and the whole of each Easter holiday.”

He continued:

“The mother has never obeyed the order of the appeal court and has, since December 2012 (or at latest since January 2013 when her time for appealing to an even higher court had elapsed), been in continuous breach of her promise, undertaking or “public commitment”.  Further, since the order of the appeal court, the mother has refused to permit N even to visit Spain to stay with his father in any of the several school holidays between then and now.  She has made no attempt to appeal from the order of the appeal court to a yet higher court, nor to apply for the order of the appeal court to be later varied [changed] or stayed [cancelled].”

The father tried to enforce the ruling – initially through the Spanish courts, and later by launching proceedings under the Hague Convention on the Civil Aspects of International Child Abduction. The latter provides a legal instrument for the return of children taken to or detained in other countries by a parent without permission to do so.

Later, however, his legal team applied for enforcement of the Spanish family court order under Brussels II Revised. This EU regulation governs family law disputes involving more than one member state, in particular those relating to child custody.

The mother countered by applying for a residence order under the Children Act 1989.

The High Court ruled in favour of the father’s Brussels II application. Mr Justice Holman declared:

“I am fully prepared unreservedly and conscientiously to assume that N is well settled with his mother and siblings and that she looks after him well.   But I take into account, too, that his father was assessed by the original Spanish court of first instance as being “perfectly capable of assuming the care and custody of him”.  He was later described by the mother as not a bad father.  The Spanish appeal court assessed that he should care for the child.  While separation from siblings is usually undesirable and to be avoided, the children in fact have different fathers.  The situation of N is different from that of the other two.  He has a Moroccan/Spanish heritage.   They do not.  On any view, he should spend periods both here and in Spain, and during parts of every year he is likely to be separated from his half-siblings.”

The Spanish courts had clear jurisdiction in the case, the judge declared. The mother had only been permitted to move to Britain with N on a temporary basis, subject to her agreement to obey the Spanish courts’ eventual decision.

He said:

“In the case of both recognition and enforcement there is only one possible ground for non-recognition or non-enforcement in the present case;  namely, that it would be “manifestly contrary to the public policy” of this state “taking into account the best interests of the child”.  The test is stringent.   The bar is a high one.”

The judge concluded:

“The delay in this case lies substantially at the door of the mother.  It may well be unsettling for N now to return to Spain.  There is no evidence that it would be damaging to him to the point of being manifestly contrary to public policy. The regulation is, of course, binding upon me, and the Spanish order must be both recognised and enforced.”

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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