The above case is a decision from May 2013 in the English Courts and the decision considers the different tests for habitual residence in Hague Convention proceedings and European law.
The mother of the children in this case was Spanish and the father was British. They had four children ranging in ages from four to twelve years. The father did not have parental responsibility for the older two children but did in respects of the younger children. The parties met when the mother came to live in England in the mid 1990s and throughout their relationship they had four children and never married. Both parents described a turbulent parental relationship and both parties gave accounts of a strained relationship after the birth of the youngest child. There was also descriptions of hostilities and aggression in the relationship over the years. Their relationship finally disintegrated in early 2012 and the mother took the children to Spain at the end of the academic year in July 2012. The father collected them for a contact visit over Christmas and informed the mother in early January that they did not wish to return from the UK. The mother then brought proceedings under the Hague Abduction Convention and Brussels IIR. The eldest child, age twelve, had reported being bullied at her secondary before the mother took her to Spain but, during the Court proceedings expressed the clear view that she wished to remain in the UK with her father, in part because the education was better but also because she felt let down by her mother. She was hostile to her mother. The two middle children were ambivalent and conflicted as between the parents but, went along with the eldest child’s views. The youngest child was too young to express an opinion. The father mounted a full defence to the proceedings on the basis that first, the children were habitually resident in England and Wales and secondly, they objected to returning to Spain themselves and thirdly, they would be placed in an intolerable situation if returned to Spain due to the mother’s neglectful parenting or that they would be split up as a sibling group.
Justice Cobb who heard the case found that the father had unwillingly agreed that the mother could take the children to Spain indefinitely and as a result of this finding, ordered the return of all four children to Spain.
In ordering the return of the children to Spain the Court found that:
a) English law is in line with European law concerning the issue where the mother alone has parental responsibility. A removal by the mother represents the legitimate exercise of the mother’s own freedom of movement under the EU Treaty and of her right to determine the child’s place of residence and does not deprive the natural father of exercising his right to submit an application and obtain rights of custody.
b) The father’s views are relevant to the question whether the oldest child had in fact acquired habitual residence in Spain and his objection would have been significant (if he had been found to have objected to their going to Spain) as one of the conditions for the reasons for the stay in the territory of the member state.
c) In relation to the children for whom the parent had parental responsibility, any agreement to their relocation must be clear but not necessarily judged by reference to the exacting standard applied to the test relevant to Article 13 (1) consent as a Defence. On the facts, the father’s agreement was clear and unconditional and was affective to facilitate change of habitual residence.
d) It was a true bilateral agreement to their stay being indefinite and in that sense it was important to consider how far the children were integrated into life in Spain under the European definition of habitual residence. The move to Spain had not been easy for the children, undertaken against he backdrop of months and probably years of bitterness and rank between their parents. Inevitably, the move created a hiatus in the children’s lives and integration must be viewed in that context. On the facts it did achieve a significant degree of integration into their new social and family environment.
e) In any event, the father’s contract, viewed before both the departure to Spain and afterwards, reflected at the very least acquiescence in that state of affairs for the purposes of Article 10 (a) BIIR and would have satisfied the high threshold test under the Hague Convention Article 13 (b) Defence in re K (Abduction: Acquiescence) 1997 1 FLR 872. It followed that the children were habitually resident in Spain and their retention in England and Wales was in breach of their mother’s rights of custody under the law of Spain.
f) There must be a very clear distinction between the children’s objections and the child’s wishes and feelings. To take account of such objections, it is necessary for them to be so solidly based that they are likely to be terminative of the discretionary exercise which is to follow.
g) The three eldest children were of an age and maturely which the Court can take account of their views; the eldest child objected to returning to Spain, but the views of the two younger of these feel short of clear objections to such return.
h) The threshold for proving that a child would be placed in an intolerable situation if returned remains high and the evidence was insufficient to establish it in this case.
i) The eldest child’s objection to return opened the gateway for the exercise of the Courts discretion. Whilst she was plainly bright and determined, it would not be right to give determinative weight to her views which were influenced by her aligning herself with her father and shifting her ground from how she had previously felt, such that her objections might well modify once again after her return to Spain. She and her mother needed to work out their differences and that would not happen while she remained living with the father.
The Judge hearing the case also made some final comments which are of interest to anyone practicing in the area of Family Law and relocation. The Judge commented that the litigation had self evidently been bruising for the parents. The Judge also asked them to think how much worse do they think this litigation has been for the children?. It would appear this question was asked in particular where the oldest child had become directly involved in the proceedings.
The case is an interesting one, especially in relation to the way the Judge dealt with the eldest child’s objections to return to Spain. The Judge seems to take the view that the longer term interests were best achieved by ordering her return to Spain even though she clearly objected to same.