Ef v Mgs
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HOLMAN |
| Judgment Date | 18 November 2011 |
| Neutral Citation | [2011] EWHC 3139 (Fam) |
| Docket Number | No. FD11P02076 |
| Court | Family Division |
| Date | 18 November 2011 |
[2011] EWHC 3139 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr Justice Holman
No. FD11P02076
MISS J. RENTON (instructed by Ellis Jones) appeared on behalf of the Applicant/mother.
MR E. DEVEREUX (instructed by Access Law) appeared on behalf of the Respondent/father.
The issue
On 17 August 2011 a mother travelled with the parties' son from Spain to England and left him with his father in England. The mother expected to collect him and return with him to Spain on 10/11 September 2011.
On 26 August 2011, while the child was present in England, the father made a without notice application to the Portsmouth County Court for a prohibited steps and residence order. On that date a district judge made an order prohibiting the mother from removing the child from England and Wales until further order. The express purpose of the father's application was to prevent the return of the child to Spain on 11 September 2011, with a view to the child remaining here and going to school here in September. The district judge fixed a further hearing date for 12 September 2011.
On 12 September 2011 the mother made plain that she intended to issue an application in the High Court for the return of the child to Spain under the Hague Convention on the Civil Aspects of International Child Abduction. The circuit judge accordingly stayed the proceedings in the Portsmouth County Court. The prohibited steps order was discharged on the mother's undertaking not to remove the child from England and Wales until further order (save for certain agreed periods of contact in Spain).
On 15 September 2011 the mother duly issued her present application in this court for an order for the return of the child forthwith to Spain, pursuant to the Hague Convention.
The primary purpose of the Hague Convention is to ensure the prompt return to the state of their habitual residence of children who have been wrongly removed or retained from that state: see the preamble to the convention and the scheme and provisions of the convention generally. It is common ground between the parties and their experienced counsel in this field that if the convention is engaged at all, then this is a case of wrongful retention.
The retention occurred on 26 August 2011 when the father evinced an intention not to return (or permit the return of) the child to Spain on 11 September 2011, and took steps to prevent that happening by obtaining the prohibited steps order from the Portsmouth County Court.
It is also common ground that the sole issue that arises for determination on this application is whether, on 26 August 2011, the child was habitually resident in Spain. If he was so resident, then there was a wrongful retention and I must order his return forthwith. If he was not so resident, then the convention is not engaged at all although both parents may, of course, pursue a range of other remedies under the Children Act 1989.
The father does in fact go further and positively contends that the child had previously become habitually resident in England and Wales and was still habitually resident here on 26 August 2011. The true and actual question is, however, not whether he was habitually resident here, but whether he was habitually resident in Spain on that date.
Miss Jacqueline Renton, who appears on behalf of the mother, concedes that the burden of proof is upon the mother, as applicant, to establish on a balance of probability that the child was, on the facts of the case and applying the correct legal principles or approach, habitually resident in Spain on 26 August 2011.
The father does not now rely on any other defence, whether under Article 13 of the convention, or upon the applicability of any other of the requirements or ingredients of Articles 3, 5, 12 or generally. The child, still aged six, was seen by a child and family reporter on 18 October 2011, but the officer reports (now at bundle page C1 to 5) that he could not elicit the child's views about returning to Spain and that he presented at the interview as being younger than his chronological age.
Rights of custody
The parents, who are both Spanish, lived together for eighteen years (with some short separations) in a settled, quasi marital relationship from 1993 until a breakdown in July 2011. Their only child was born in 2004. The mother has expressly accepted and conceded that, for all purposes connected with the present application, including consideration of any capacity to change the habitual residence of a young child, I should proceed as if the parents were, before the child was born, and still are, married to each other. I should assume that under both English and Spanish law each had, and has, identical parental responsibility and/or custodial and related rights, subject of course to any court orders which may yet be made here or in Spain.
The facts
Until the very end of the relevant history, in the period mid-July to mid-August 2011, the essential facts are substantially agreed and I shall simply narrate them with little reference to the underlying evidence or documents.
Both parents are Spanish, born and brought up in the Guadalajara area of Spain in which several of their respective extended families still live. The parents and child are all nationals of Spain and of no other country. Both parents are now aged forty-three. They met and have lived together in an apparently permanent relationship since 1993. For a long time each has owned (and still does own) a home in Guadalajara, although they actually lived in the property belonging to the father. For a period they lived together in America when the father was assigned there by his employers.
Both parents are highly intelligent, educated and articulate people. The father is an engineer who has worked for many years for a Spanish firm, Indra, in the field of air traffic control technology. The mother most recently worked for some years in Spain under a permanent contract in her local Social Welfare Department as a social education officer. Their only son, Pedro G F, was born on 28 November 2004 and will be seven at the end of next week.
During 2008 the father's employers offered him the opportunity of moving to work for them in the Portsmouth area of England, for an initially fixed term of (almost) two years from August 2009 to 30 June 2011. After discussion between the parents the father decided, with the agreement of the mother, to accept the offer. Both parents agreed that it afforded a good opportunity for Pedro to learn some English, immersed in an English school, and generally that it would be an enriching experience for all of them. The mother's employers in Spain granted her express voluntary leave of absence from 1 August 2009 to 31 July 2011 by reference to various workers' rights as recorded in the document now at bundle page B14 (here and generally I refer to the page of the English translation of any Spanish documents). The mother's job was kept open for her until that date.
On 15 August 2009 the parents, with Pedro, all moved to live in England in a rented home in North Boarhunt near Fareham in Hampshire. The mother's own property in Spain was rented out. The father's property was not rented out, but was closed down. They sold one of their cars in Spain and stored the other. They bought two cars in England. Pedro began at a school here. In November 2009 all three were registered with the Wickham Group Surgery.
Between October 2009 and February 2010 there was a rift in their relationship. They occupied separate bedrooms, but remained living in the same home and were reconciled in February 2010.
In May 2010 they sought and obtained an offer of an English mortgage in the sum of £187,500, but they did not, in the event, buy a house.
During the summer of 2010 they moved to another rented property (it was smaller with lower overheads) at 7 Mill Lane, Wickham, where the father still lives.
In October 2010 both parents' names were enrolled on the electoral roll for 2011 for the address at Mill Lane, although their registration on a similar roll in Spain persists.
During 2010 they made visits to Spain and also some family members visited them in England.
In February 2011 the mother commenced her first job here, as a part time children's nursery assistant. She says that she waited until her English was good enough before seeking any employment.
On 10 February 2011 they both signed a formal application for Pedro to be admitted to a school in Spain in the Autumn 2011, giving his former school, Pedro Sanz Vazquez, in Guadalajara as their first choice (see bundle page B7 and 8). This was, of course, an important step, as at that stage they did not know whether the father's contract in England would be extended beyond August. The various stages of the school admissions process in Spain are set out in a document now at bundle page B119, which shows that actual registration in the assigned school would take place in the period 20–30 June.
As late as February 2011 the parties were clearly still considering buying a property in the Wickham area, as the mother sent two emails to the father (now at bundle page B459A and 460). One attached links to various properties, the other attached links to recent comparables to 7 Mill Lane.
In March 2011 the mother started teaching Spanish to students in addition to her nursery work.
In April 2011 the father was offered the opportunity by his employers to extend his term in England by a...
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