(Family Division; Sir Mark Potter P; 20 June 2006)
The mother applied to the English court for the return of the two children to Spain under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention). The British father had abducted the children from Spain, the country of habitual residence, shortly after the couple separated. Although the mother had been the primary carer when the children were very young, in more recent years the father had taken over that role. Following the abduction, the mother had swiftly brought quasi-criminal proceedings, then matrimonial proceedings against the father in Spain, including issues of custody and return of the children, but had not made an application for return under the Hague Convention. The mother claimed that this was because she was then unaware of the Hague Convention, her lawyers having failed to mention it to her. Pending the divorce, a court in Spain considered the current situation of the children and, in the interests of the children's welfare, made interim orders granting care and custody to the father in England with significant contact to the mother. The Spanish divorce proceedings were now underway, at the conclusion of which final orders would be made. The father relied upon the Spanish order, arguing that the unlawfulness of the original removal had been overtaken by the subsequent Spanish decision that the children should reside in England at present.
If the court of the Member State in which the child was habitually resident had already resolved the issue of the child's residence in favour of the abducting parent by the time of the Hague Convention hearing, then the thrust and purpose of Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility repealing Regulation (EC) No 1347/2000 (Brussels II Revised) operated in favour of an order for non-return. If the children were now returned to Spain under the Hague Convention, the English court would be failing to give effect to the Spanish order. There had been a full and careful hearing of the issue by a Spanish court, which had made a decision based on welfare, in possession of all the relevant facts and fully aware of the full circumstances of the father's removal of the children. If the English court were to order the return of the children to Spain, the father would be able to bring the children back to England immediately, without any breach of the Spanish court order. The Spanish judgment was to be recognised by the English court, under Art 21(4) of Brussels II Revised.