(Court of Appeal; Thorpe, Longmore and Bodey J; 24 June 2009)
The unmarried parents were both British nationals, but were habitually resident in Spain; the two children, also British nationals, were born and registered in Spain. The legal status of the father had been formally recognised by a Spanish process known as 'filiation'.
The mother removed the children to England; the father then applied to the Spanish court for guardianship, custody and access, and, a few months later, sought the summary return of the children under the Hague Convention. The mother objected to a return on the basis that it would expose the children to a grave risk of harm, or otherwise place them in an intolerable situation. A preliminary issue arose as to whether the father had rights of custody for the purposes of the Convention. The filiation procedure operated to confer parental responsibility on an unmarried father, but, under Spanish law, the father's rights in relation to the children were governed by the personal law of the child, and, as the children were British nationals, the relevant personal law of the child was that of England and Wales. It was accepted that under English law the father did not have parental responsibility.
The President of the Family Division concluded that the removal or retention of the children by the mother had been in breach of the father's rights of custody, because at the time of the children's removal the father had been exercising rights of parental control and custody under Spanish law. The President considered that even though the children were British nationals, and Spanish law stipulated that English law was the applicable national law, English law should not be applied in this case, because it would produce a result contrary to Spanish public policy.
The appeal was dismissed. The President had adopted the correct approach at trial. Having been faced with the difficult task of finding as a fact what would be the law of Spain, his finding had been based on very clear and extensive expert evidence; he had preferred one of the authoritative experts above the other, explaining clearly his reasons for doing so and his judgment was simply not open to challenge. The court noted that the President had focused on the first stage, an investigation of the law of the state of habitual residence immediately prior to removal, not the second and ultimately decisive stage, the question what the father's rights of custody were according to the autonomous law of the Convention rather than the law of Spain. In a sense the value of the President's judgment was that it concluded the issues at the first stage, but it was perfectly apparent that the father had rights of custody under the international and autonomous law of the Convention, which had plainly moved significantly since Re JB (Child Abduction) (Rights of Custody: Spain)  1 FLR 796.