Family analysis: In AH v CD and others [2018] EWHC 1643 (Fam), [2018] All ER (D) 162 (Jun) an application by a father who sought his son’s return to Spain, after the child was taken out of the jurisdiction by his mother, raised issues under the 1980 Hague Convention, and also as to the discharge of a care order made by a court which had not been told of the child’s father’s whereabouts. Richard Jones, barrister at 1 Garden Court Chambers, explains the issues.

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What are the practical implications of this case?

This was a very unusual case which involved not only the interplay between the 1980 Hague Convention and enforcement under Council Regulation (EC) 2201/2003 (Brussels II bis), but also the issue of the discharge of a care order made by a court which had known nothing of the whereabouts of the biological father. The case reminds practitioners of the need for a ‘joined up’ or holistic evaluation of welfare, which includes all the applications and consideration of any siblings or half-siblings of the subject child as well.

Williams J made reference to the guidance of Mostyn J in abduction situations involving EU Member States (JRG v EB (Abduction: Brussels II Revised) [2012] EWHC 1863 (Fam), [2013] 1 FLR 203, ET v TZ (Recognition and Enforcement of Foreign Residence Order) [2013] EWHC 2621 (Fam), [2014] 2 FLR 373), and drew attention to the need in this case for all relevant matters to be considered together.

The case is also useful for practitioners when they are faced with situations where consideration needs to be given to whether a non-subject child ought to be joined to the proceedings. Williams J commented that while he agreed with the decision to join the older child in the ‘unique circumstances of this case’, he exhorted practitioners to consider both the decision of Baker J in W v W (Abduction: Joinder as Party) [2009] EWHC 3288 (Fam), [2010] 1 FLR 1342, and of Munby P in S v B (Abduction: Human Rights) [2005] EWHC 733 (Fam), [2005] 2 FLR 878 when considering the issue.

What was the background?

The court was concerned with an eight-year-old boy who, at the time of the application, was living separately from his half-brother, who was rising 13. Both were subject to care orders, with the younger boy living in foster care and the older boy in a residential home.

The father was a Spanish national and the mother a Brazilian national. The parents met in Spain in 2005 when the mother was pregnant with a child from a previous relationship. That child, the older boy in this case, was born in 2006. The parents began their relationship shortly after his birth, living together in Spain.

It was the father’s case that in 2011 the mother informed him that she had ‘legal problems’ in Spain and that she was considering leaving the country as a result of a criminal investigation against her. The mother left the family home in November 2011 with both children. The father visited his son in London in 2014. It was after this that the mother left the UK for Portugal, with it being understood by the father that she would then be returning to Spain. It was the father’s case that the mother and the children were relocating back to Spain – the mother said this was not so.

Despite a court order from the Spanish court that the younger boy was not to be removed from the jurisdiction, the father learnt in late 2014 that the mother had left Spain with both children without his knowledge or consent. The father did not know where the mother was, or the children.

It was only in August 2017 that the father learnt that the younger boy and his half-sibling were in the UK and under the care of the London Borough of Haringey. The court hearing the care proceedings had decided that the mother could not care for either child, and the mother had not given details of the father to the local authority.

The application before the court was that of the father of the younger boy, who sought his son’s return to Spain under the 1980 Hague Convention. Further, under Brussels II bis, he obtained orders for the enforcement and registration of two court orders made in Spain which awarded custody to him in May 2015 and April 2016. In April 2018, a district judge at the Central Family Court directed that the orders be registered, and made a second order permitting the enforcement of those orders. Appeals against the orders of the judge were made.

What did the court decide?

With regard to the enforcement of the Spanish judgments, the court considered whether there were any grounds established so as to cause the non-recognition of the judgment made as a consequence of the Spanish order of 21 May 2015. The court found in relation to Brussels II bis, Art 23, that:

• Article 23(b) (as to an opportunity for a child to be heard) was established.
• Article 23(c) (judgment in default of appearance) and (e) (irreconcilable with a later judgment) were not made out.

On the issue of whether there were any grounds established so as to cause the non-recognition of the judgment made as a consequence of the Spanish order of 7 April 2016, the court found in relation to Brussels II bis, Art 23, that:

• Article 23(b) and (c) was established.
• Article 23(d) (irreconcilable with an earlier judgment) and (e) were rejected by the court.

1980 Hague Convention

The court determined that the younger boy was habitually resident in Spain immediately prior to his removal by his mother in or about September 2014. The court determined that the Hague Convention 1980, Art 13(b) defence was not made out and that the child did not object to a return to Spain.

However, the court also found that the boy was settled in this jurisdiction and that the discretion of the court is at large.

Public law orders under s 31 of the Children Act 1989

The court determined that the court dealing with the care proceedings had jurisdiction to place both children in the care of the London Borough of Haringey pursuant to the Children Act 1989, s 31, by its order of 14 June 2016.

Ultimately therefore, the case was listed for a further three-day hearing to consider whether, given the court’s discretion was at large, the younger boy ought to be returned to Spain.

Interview by Kate Beaumont.

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This analysis was originally published on LexisPSL Family (subscription required). Click here to request a free 1-week trial