Family Law Hub

J (Children) [2012] EWCA Civ 1511

  • In brief: The mother ("M") and father ("F") had been involved in a long running dispute over their children; proceedings had been taken both in England and in Spain since 2008. The most recent application had been by F under the Hague Convention 1980 for the return of the children to Spain after they had been brought to Wales by M. F had been granted a return order but M had failed to hand the children over as directed. When M's subsequent application to stay implementation of the order was refused, she absconded; she and the children were only found after the press were informed. M was then arrested and the children taken into foster care; when F went to collect the children the following day, there was a "sad scene" which resulted in only two of the children returning with him to Spain.  

    M (having been released from custody) sought permission to appeal the order for the return of the children to Spain. The two children who remained in the UK also sought permission to appeal an order that refused them party status. M submitted there was fresh evidence which rendered the judgment flawed.  

    Both applications were dismissed. Commenting that there was nothing fresh about the evidence M was producing, Thorpe LJ refused M permission to appeal the return order.  

    Observing that the case was unusual in that the two jurisdictions engaged by the Hague Convention 1980 application were both European jurisdictions and were accordingly bound in priority by Brussels II, Thorpe LJ explained that all the welfare issues had been determined by the Spanish courts. He queried therefore the purpose of the ongoing Hague Convention 1980 proceedings and the role of the English courts.  

    He concluded by commenting that that the frustrated endeavour to enforce the order might have been avoided if the process had been approached with greater sensitivity and if the children had been involved in the enforcement proceedings. He invited the parties to discuss with the judge the possibility of him seeing the two children remaining in this jurisdiction to explain to them the "reality and also the inevitability of their return to Spain."

Case note, published: 08/01/2013

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Published: 08/01/2013

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