Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
The Spanish mother and British father had four children together aged between 12 and 4. The father had parental responsibility for the two younger children by virtue of being named on their birth certificates but as the parents were unmarried he did not have parental responsibility for the two older children. The family lived in England throughout the relationship and the mother regularly took the children to Spain for holidays in order to visit relatives. When the relationship came to an end the mother and father had a number of discussions as to their long-term future and where they would live, with the mother asserting a wish to return to Spain.
The mother purchased one-way ticked to Spain for herself and the children. The mother provided notice to the schools that the children would not be returning for the following term and sent an email to the leader of the cub group that they were moving to Spain which was sent via the father. Thereafter the father drove the mother and children to the airport for them to fly to Spain.
The mother and children moved in with family members and the children joined Spanish schools. Five months after the mother and children flew to Spain the children travelled to England to have contact over Christmas with the father. There was no dispute that it was intended for the children to return to Spain after Christmas.
The father claimed that the children became upset during the visit and didn't want to return to Spain. The mother insisted that the children should return. When the father stalled the mother applied for a summary return of the children pursuant to the Hague Convention.
On the facts the children lost their habitual residence in England when they flew to Spain with the mother. Having regard to the integration test found in Mercredi v Chaffe they had become habitually resident in Spain by the time the father failed to return them.
By virtue of the father's lack of parental responsibility for the two older children, the mother, by virtue of English and European principles, had the right to determine their habitual residence. However, in respect of the two younger children, the father's consent was required in order to alter their habitual residence.
On the facts of this case, the father's agreement to the younger children's move to Spain was clear, and unconditional, and was in that sense effective to facilitate a change of habitual residence. It was a true bilateral agreement; the agreement was to their stay being indefinite.
Even if that interpretation was wrong, the father's conduct before and after the children left for Spain was capable of amounting to acquiescence.
The father claimed the children should not be returned due to their objections and due to the fact that they would be placed an intolerable situation. It was clear from the evidence of the Cafcass officer that all the children felt torn by the situation and that the 12-year-old had many negative feelings about her mother currently. However, the views of the 10 and 8-year-olds fell short of clear objections to returning to Spain. There was insufficient evidence to make out an intolerability defence.
While the 12-year-old was of an age and degree of maturity at which it was appropriate to give weight to her views the judge did not give them determinative weight. She had a distorted view of recent family history, it was clear she hadn't thought through the consequences of her viewpoint and she had only weeks previously been less confident of her position. The judge ordered the return of all four children to Spain.