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 The case M & F (Children): Children of Spanish parents may remain with their mother in England

The case M & F (Children): A High Court judge has ruled that two teenaged children of Spanish parents who have lived in England with their mother since 2013, and who have repeatedly stated that they want to stay here, may remain in this country.

Competing jurisdictions

The ruling, in M & F (Children), also looks at the situation in which two jurisdictions ‘compete’ over arrangements for children.

The ruling concerned the mother’s appeal against the enforcement of a Spanish court order that the children live with their father in Spain. The appeal was heard by Ms Justice Russell DBE.

The facts of the case were quite complex, the litigation in relation to the children having taken place in both Spain and England over many years. I will, therefore, do some simplification to the relevant facts, which were as follows:

  1. As stated, the parents are both Spanish. They married in Barcelona in 2002 and moved to Pamplona two years later.
  2. Their first child, ‘AE’, was born in Spain, in October 2003.
  3. In 2006 the family moved to England, where their second child, ‘JE’, was born in December that year.
  4. In July 2011 the family moved back to Pamplona, but a few weeks later moved to Tenerife.
  5. In July 2012 the father moved back to Pamplona, the mother and children remaining in Tenerife. At that stage, the parties’ relationship was continuing, but it broke down in the course of 2013.
  6. In September 2013 the mother commenced divorce proceedings in Spain.
  7. By this stage, the mother had obtained employment in England, and she, therefore, applied for interim custody, and permission to remove the children from Spain.
  8. The application was granted, and shortly before Christmas 2013 the mother and children moved to England.
  9. In March 2014 the father lodged a letter with the Spanish court, in which he requested that custody of the children be awarded to him in Spain.
  10. The children were interviewed by a psychologist, who reported that it was their wish to live with the father in Spain. Accordingly, in June 2016 the Spanish court awarded custody of the children to the father.
  11. In September 2016 the Spanish court ordered the mother to return the children to Spain.
  12. The father sought to enforce the Spanish orders in England.
  13. To cut a long story short, in September 2017 Mr Justice Baker (as he then was) held that the case should be decided by the Spanish courts, and eventually, in March 2019, the English court registered the Spanish order for enforcement. The mother appealed.

Appeal allowed

Ms Justice Russell made a number of findings in the case M & F (Children), including the following:

  1. That on any objective and neutral analysis both children are habitually resident in England, having lived here since 2013. They were settled here and were fully integrated into their schools and social environment.
  2. That both children repeatedly over a period of years stated to the English court that they wanted to remain here with their mother (the older child was in any event pretty well old enough to decide for herself where she lives).
  3. That the children’s guardian found that both children strenuously opposed living in Spain, having both retracted their views as previously expressed to the Spanish court. In light of this, the guardian considered that the children were likely to suffer harm if they were to return to Spain.

Accordingly, the mother’s appeal was allowed. A child arrangements order was made providing for the children to live with the mother, and to have contact with the father in England and Spain, subject to the father providing documentary evidence to the effect that all criminal complaints that he had made against the mother in Spain had been withdrawn, and that the Spanish order had been discharged.

You can read the full judgment here.

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If you would like any further information on international child law, you can find out more about our international family law team here or please do contact our Client Care Team to speak to one of our specialist family lawyers here. 

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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