The decision of Baker J centred on whether he should submit a request under Brussles II bis, Art 15 to transfer private law proceedings, concerning two children, from the Spanish courts to the High Court in London.
The Spanish court had already been seized of custody proceedings, issued by the mother in 2013 following the breakdown of the parents’ marriage, and – following a psychological assessment of the children in the autumn of that year – the Spanish court granted the mother’s application and permitted her to remove the children to England.
The Spanish court ordered that the children spend one month each summer and a week at Christmas with their father in Spain in addition to one weekend per-month with him in England. The Spanish courts were also seized of the parents’ divorce proceedings, during which the children were once again assessed by a psychologist – this time, it was said that the parental conflict had impacted upon the children and they both wanted to be in Spain.
At the conclusion of those proceedings in June 2016, the court ordered that the children live with their father in Spain but spend extensive periods of time with their mother in London, unless the mother chose to travel to Spain for those periods. The mother appealed and returned to England with the children – the father then issued proceedings in the High Court in London for a location order and for registration and enforcement of the Spanish orders.
The mother sought to appeal against the registration and enforcement of those orders, which was ultimately successful on the basis that the district judge making the orders had not been told about the Spanish appeal.
While that appeal was being determined, and the father’s application for registration and enforcement of the Spanish orders was stayed, the High Court ordered contact between the father and the children on an interim basis, including for a holiday to Spain over Easter 2017 – when they would spend time with their paternal family. During that contact, and contrary to undertakings he had given to return the children, the father flew with the children – ultimately – to Indonesia. The mother applied back to the High Court on an emergency basis and the children were made wards of court. The mother flew out to Indonesia and, with the assistance of the Spanish consul, recovered the children and they flew back to England.
At the hearing before Baker J on 4 September 2017, the Spanish appeal was still ongoing – the mother was unwilling to take the children back to Spain for yet more interviews, directed by the court in Spain, with a psychologist as well as the appeal judge. Baker J accepted that the English court was ‘second seized’ – the divorce proceedings having followed on from the custody proceedings – and, as such, the English court must decline jurisdiction in favour of the court in Spain, unless the proceedings were transferred to England and Wales under Brussels II bis, Art 15. Baker J noted that the orders made at the interlocutory hearings had been provisional, protective measures as permitted by Brussels II bis, Art 20.
While accepting that the children had a ‘particular connection’ in England, because they and their mother are habitually resident here, Baker J noted that whether the court in England was ‘better placed’ to hear the case than the Spanish court was more difficult. The Spanish court had already heard evidence and the proceedings in Spain had been going on for more than four years, as opposed to the less than 12 months of litigation in England.
Baker J did consider, however, that the English court would be better placed than its Spanish counterpart to determine the impact on the children of the events over the Easter contact. The children’s guardian in the High Court proceedings had given evidence, accepted by the court, about the children’s antipathy towards returning to Spain, which increased as a result of the father’s actions over Easter. Ordering the children to return to Spain for the purpose of the meetings with the psychologist and judge, when they feared they would not come back to England if that were the case, would be likely to cause considerable anxiety and emotional and psychological harm – retaining the case in England, and the children being interviewed by their guardian and judge here, would constitute a ‘genuine and specific added value’. A further advantage was that, in the English proceedings, children are capable of being joined as parties and being represented through a children’s guardia – something not available to the children under Spanish law.
Overall, taking into account the children’s strong views against returning to Spain and the advantage to them of being parties to the proceedings in England, Baker J considered that the court in England was in a better position to evaluate the children’s emotional needs as well as their wishes and feelings, and therefore to carry out a comprehensive welfare analysis. Accordingly, Baker J found that it would be in the children’s best interests for the case to be transferred to the High Court and ruled that it would be justifiable to request the Spanish courts to transfer the proceedings under Brussels II bis, Art 15. Ultimately, however, whether the case should transfer to England would be a matter for the Spanish court, which would need to carry out its own analysis under Brussels II bis, Art 15 to determine whether the three criteria were satisfied.
Irrespective of the Spanish court’s decision, however, Baker J reached the conclusion it was essential for the two courts to work together to resolve the welfare questions raised by the proceedings. In the interim, to protect the children, Baker J continued the order made under Brussels II bis, Art 20 – preventing the father from removing the children from England and Wales or from their mother’s care except with her agreement. This was in addition to an order that the mother ensured the children were available for indirect contact to their father on at least a weekly basis and for supervised contact if the father was able to return to England.