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ABDUCTION: Re K (Rights of Custody: Spain) [2009] EWHC 1066 (Fam)
Date:19 MAY 2009

(Family Division; Sir Mark Potter P; 19 May 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 removal or retention of the children by the mother had been in breach of the father's rights of custody. At the time of the children's removal the father had been exercising rights of parental control and custody under Spanish law, which was the law of the country of habitual residence. Even though the children were British nationals, and the Spanish rule of conflict stipulated that English law was the applicable national law, in this case English law should not be applied, because it would produce a result contrary to Spanish public policy; its effect would be arbitrarily to deprive a father who had gone through the 'filiation' process of parental responsibility and/or attribute guardianship and custody to the mother without taking into account the interests of the children.