M v F

JurisdictionEngland & Wales
JudgeMs Justice Russell DBE
Judgment Date03 February 2020
Neutral Citation[2020] EWHC 162 (Fam)
Docket NumberCase No: CCR2018/23 FD18P00572
Date03 February 2020
CourtFamily Division

[2020] EWHC 162 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

IN THE MATTER OF AB (A girl) AND BC (A boy)

AND IN THE MATTER OF COUNCIL REGULATION (EC) NO. 2201/2003 ON 27 NOVEMBER 2003 CONCERNING THE JURISDICTION AND RECOGNITION AND ENFORCEMENT OF JUDGMENT AND MATTERS OF PARENTAL RESPONSIBILITY

AND IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF THE SENIOR COURTS ACT 1981

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Ms Justice Russell DBE

Case No: CCR2018/23

HS18P00283

FD18P00572

Between:
M
Applicant
and
F
1 st Respondent

and

AB & BC (Through their Children's Guardian Jacqueline Roddy)
2 nd & 3 rd Respondents

M (in person) for the Applicant/Appellant

Jaqueline Renton (instructed by Freemans Solicitors) for the F

Mark Jarman (instructed by Cafcass Legal) for AB & BC

Hearing dates: 4 th, 5 th & 6 th September and 4 th October 2019

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Ms Justice Russell DBE

The Honourable

Introduction

1

This case, which concerns two teenagers of Spanish parents and nationality, is no stranger to this court or to the family courts in Spain. As will be seen these young people have been the subjects of litigation for many years. The elder child (AB) a girl, is now sixteen years old; in less than two years she will have reached her majority. As it is domestic jurisdiction in respect of arrangements for AB is now limited, once an adult this court will not have any jurisdiction, it will be her decision where she lives. Her younger brother (BC) will shortly be thirteen, and while he is still an adolescent, he was born in England and has, in actuality, lived here most of his life. Both AB and BC are separately represented through their court appointed guardian, Ms Jaqueline Roddy, and have had their case presented by counsel, instructed by Cafcass Legal. Their mother, who is a cardiologist, works for the NHS in the South of England where the children live and attend school, who appeared in person as she is not entitled to publicly funded representation. Their father, who lives on the Spanish mainland, is in receipt of public funding and is represented by solicitors and counsel. During the currency of the proceedings in this jurisdiction the children have repeatedly told their guardian, and, through her, this Court, that they want to continue to live with their mother and to remain in England. The Spanish Court has ordered that they live with their father in Spain.

2

This case was previously considered in the High Court in 2017 by Mr Justice Baker (as he then was) and the judgment is reported as FE v MR & Ors.; neutral citation [2017] EWHC 2298 (Fam) (14 September 2017) and can be seen on Bailii http://www.bailii.org/ew/cases/EWHC/ Fam/2017/2298.html. The Spanish Court was invited to transfer the case pursuant to Art 15 of Brussels IIa but declined to do so. The proceedings in Spain continued during which the children were seen by a Spanish judge. The Spanish Court ordered a transfer of residence to Spain in June 2016 and for the children to live with their father; they had never lived with him after their parents separated. Pursuant to an order of the Spanish Court in Tenerife 2013, where the children were then habitually resident, they moved to live with their mother in England in December 2013. They have lived here since, attending their respective schools and are, as evidenced by their guardian's written analysis and oral evidence, well integrated into their social and peer groups.

3

These protracted proceedings have involved the family courts of both the Spanish and English & Welsh jurisdictions. I have attempted to set out the details of both sets of proceedings below. Putting the case briefly, proceedings concerning these children commenced in Spain in 2013 and at the end of 2013 the children moved to the UK where they have remained. As I have already observed these two young people have repeatedly, and over a period of years told their independent guardian that they do not want to be sent to Spain to live with their father but wish to remain in England living with their mother.

Background and chronology history

4

The background to the case is set out in the judgment referred to above and with clarity, but to set this judgment in context I shall repeat of it here, along with a chronological history of the proceedings since. The children's parents married in 2002, in Barcelona, Spain. AB was born, in Spain, in October 2003. In 2004 the family moved to another city in Spain where the 1 st respondent father (F) lives and works. In 2006, when AB was still an infant, the family moved to Kent in England, where BC was born in December of the same year. There they remained until July 2011 when they all briefly moved back to the city of P where F currently lives for a few weeks, before moving to the Canarias. Within a year, in July 2012, F left the family home and moved back to the city of P where he remains. M and children stayed in Tenerife.

5

F filed a petition for precautionary measures prior to filing for divorce against M in Tenerife in June 2013; he sought sole custody if M were move to London and shared or joint custody of the children, if M remained in Spain. On 3 rd September 2013 M filed for divorce and the guardianship and custody of the children and she and the children be allowed to move to England. On 19 th September 2013 by an order made by Court in Tenerife M was granted “physical custody” of the two children; a schedule of visitation to F was set out in alternative terms dependant on whether the parents resided in the same city or Island; or the parents both resided in Spain but in towns further apart; or to allow for M living outside of Spain. F was to pay child support and “extraordinary expenses” were to be shared.

6

In December 2013, M and the two children arrived in England to live. M lodged a letter with the court in January 2014 which said that M had mailed F on 20 th December 2013 to inform him that she and the children were moving to England. In March 2014 F then lodged a letter in which he sought guardianship and custody of the children be awarded to him in Spain. A hearing took place on 21 st March 2014 before a judge in the Court of First Instance in F's hometown of P. The judge interviewed the children and decided they should be seen by court-appointed psychologist. On 21 st December 2014 M made a criminal complaint of coercive behaviour against F following an incident at Bilbao airport during a contact handover.

7

On 27 th May 2015 a Spanish Judge interviewed the children. The children were interviewed in the presence of the judge by a psychologist on 31 st July 2015. They were again seen by the psychologist on 18 th August and 19 th August 2015. AB was interviewed by the psychologist on 8 th January 2016. On 5 th February 2016 the psychologist filed written report in which she recorded that it was the children's wish to be with F and the family in his home city. On 27 th June 2016 the judge delivered a judgment awarding guardianship and custody of the children to F from 1 st September 2016 and directed there should be holiday contact with their mother in London unless she decided to travel to Spain for contact.

8

M filed a notice of appeal on 1 st September 2016 and removed the children from Spain on 3 rd September 2016. In Spain, on 6 th September 2016 F lodged application for a claim to enforce the order of 27 th June 2016. On 20 th September 2016 the Spanish judge ordered M to bring the children to Spain and pay a daily fine of €100 for each day that the children remained in England. On 5 th October 2016 F issued an application without notice in England under the inherent jurisdiction for a Location Order and for registration and enforcement of Spanish Court's orders of 27 th June 2016 and 20 th September 2016; a location order was granted by Mrs Justice Roberts. An order for the registration and enforcement of the Spanish orders made by District Judge McGregor, which M was served with on 7 th October 2016. There followed a hearing before Mr Justice MacDonald on 14 th October 2016. On 7 th November 2016 M filed Notice of Appeal against the order for registration and enforcement of Spanish orders.

9

At a hearing on 9 th November 2016, Mr Justice Francis refused M's application for the children to be interviewed by Cafcass. This was followed by an application on behalf of AB being made, on 24 th November 2016, for AB, by then thirteen, to be joined as a party. On 28 th November 2016 Mr Justice Holman made an order setting aside the order made by District Judge McGregor on 5 th October 2016 as District Judge McGregor had not been informed of M's pending appeal in Spain. Further directions made included for F's application for recognition and enforcement to be stayed;...

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    ...then was) reported as FE v MR & Ors.; neutral citation [2017] EWHC 2298 (Fam) (14 September 2017) and to my judgment neutral citation [2020] EWHC 162 (Fam) to which I have alluded, as upheld by the Court of Appeal and reported under neutral citation [2020] EWCA Civ 1030 in August 2 The pr......

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