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Brothers must return to Spain, court rules

Two brothers who had fallen out with their mother and stepfather in Spain must return so the Spanish courts can rule on their future, a court has ruled.

In C v V, the English couple had moved to Spain in 2006, when their two sons were aged five and two. But the relationship broke down and the father returned to the UK in 2009. Around this time, he wrongfully took the boys back with him but their return was ordered by a UK judge. Judge Wain did so under section 8 of the Children Act 1989, rather than the more usual Hague Convention on the Civil Aspects of International Child Abduction.

The mother continued living in Spain. The father had sporadic contact with his sons, now aged 15 and 11, but the issue of contact has been an ongoing “a source of tension”, explained Mrs Justice Parker in the High Court. The father claimed that the two boys had spoken to him of their unhappiness at home with the mother’s new husband and four-year half-sister.

The boys visited the father during the school holidays last year. On the day they were due to fly back, however, the father texted the mother to say the brothers were “adamant” they wanted to stay with him.

Later that month the mother launched proceedings for the return of her sons under the Hague Convention. The father raised two defences – that the children objected to going back; and that a return would expose them to “physical or psychological harm or otherwise place the child in an intolerable situation”, as described by article 13(b ) of the Convention.

The case proceeded slowly, however, and was adjourned on one occasion because no judge was available. Cafcass prepared a report.

Mrs Justice Parker described the case as “exceptionally difficult” and one that she had had to consider carefully. She met the older boy, referred to as ‘L’, to discuss his wishes and feelings, but not his younger brother ‘B’.

The Judge noted:

“At the hearing I was told that the mother and her husband had come to the reluctant conclusion that they will separate for the purposes of enabling the boys to return to Spain for their future to be decided. The mother also puts forward her sister J and her friend D as persons who could accommodate the boys whilst the Spanish court makes a decision, or whilst the mother has her new baby.”

Mrs Justice Parker explained:

“The balance of risk and harm comes down firmly in favour of the return of both boys to Spain… Neither boy makes any real complaint about physical abuse from their mother save for the one incident, and that she prioritises their stepfather. She and S are now prepared to part in order for the boys to return. L’s complaint that he and his mother have little in common does not come under any definition of risk of harm.”

The boys wanted their father to go back with them but he complained that he could not afford to do so. The Judge expressed some doubts about this but ordered the brothers to be returned on their own if the father refused to accompany them.

If, once back in Spain without their father, they refused to return home with their mother despite the separation from her new partner, they should live with their aunt, she continued.

Read the ruling here.

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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