Father told to return children to Spain 4 years after abduction

family law

In the last couple of weeks there has been a trickle of old law reports appearing on Bailii. I’ve already written here about one such case, T v S, on Tuesday. Another was the 2009 case LAB v KB (Abduction: Brussels II Revised). Now, a brief summary of this case was published back in 2010, but this is the first time I’ve read a full report, and I think it’s worth a comment.

The case concerned an appeal by a father against the registration/recognition of a Spanish residence order. The basic facts were that the father, who was English, and the mother, who was Estonian, married in England in 1998. After this, they moved with their two children (aged 10 and 9 in 2009) to Spain.  The marriage subsequently broke down and on the 25th September 2005, the day that the mother was moving out of the matrimonial home, the father wrongly removed the children unilaterally from Spain to England.

The mother immediately issued proceedings in Spain and eventually, on 30th July 2007, the Spanish court made a residence order in her favour. The father failed to comply with the order and so the mother applied to register it in England, so that the English court could enforce it. The order was registered in May 2009, and the father appealed against the registration.

The appeal went before Mr Justice Roderic Wood in the High Court, in August 2009. The question he had to decide was: should a residence order made in Spain two years previously, and two years after the abduction, be enforced in England?

Mr Justice Wood decided that it should, for the following reasons:

  1. The recognition of foreign judgments is governed by the ‘Brussels II Revised’ regulation. Article 23 of the regulation sets out the grounds upon which a judgment shall not be recognised, such as that recognition would be contrary to public policy, or that the child had not been given an opportunity to be heard. Wood J found “no features of this case of sufficient gravity or cogency” to trigger non-recognition pursuant to Article 23. In particular, the mere passage of time was not sufficient to avoid recognition.
  2. It had been argued on the father’s behalf that the children were in effect given no real opportunity to be heard in the July 2007 proceedings. Wood J found this argument to be unsustainable. The children had been given the opportunity to be heard in the Spanish proceedings, and had expressed a ‘fervent wish’ to live with their mother in Spain. Further, they had written to Mr Justice Wood prior to the hearing, and the older child had confirmed that she had told the Spanish court that she wanted to live with her mother (albeit then saying that they now wanted to stay in England with their father, a wish that Wood J considered may have been expressed after manipulation by the father).

Accordingly, the father’s appeal was dismissed. However, the father made two further applications.

Firstly, the father requested that before the order was enforced Cafcass should prepare a report on the children, particularly in relation to their wishes and feelings as to where they want to live, having regard to the fact that two years had elapsed since the Spanish order. This application was rejected by Wood J. He said that to so order would be opening the door to a full welfare enquiry which he did not consider to be permissible under the regulation. In any event, the children had been heard (including in their letter to him) but, as the English and Spanish courts agreed, such wishes and feelings are not of themselves necessarily determinative.

Secondly, the father invited the Spanish court to transfer consideration of an application he had made in July 2009 to vary the order of July 2007, to the English court for hearing. Wood J declined this invitation. The father had throughout embraced the Spanish jurisdiction (although declining to obey their orders when he did not like the outcome). If he wished to have the matter transferred to the English court then he could apply to the Spanish court for such a transfer.

An interesting case, demonstrating that the passage of time alone is not sufficient to prevent a foreign order being recognised. I think, though, it is significant that, as Wood J pointed out, the courts in both countries approach litigation concerning children in a similar way. In particular both jurisdictions hold the welfare of the child to be paramount, and both take into account the wishes and feelings of the children, but not so that they should determine the outcome of the case.

The full report of LAB v KB can be found here.

Image by photosteve101 via Flickr

John Bolch

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.

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