Family Law Hub

Re E (Abduction Article 13B Deferred Return Order) [2019] EWHC 256

In a tweet: An application made by a father seeking a return order to Spain in respect of his daughter.

  • In brief: Here, we have an application made by a father (“F”) seeking a return order to Spain in respect of his daughter (“E”). The court was required to assess if E had been habitually resident in Spain immediately before her abduction, and if so, and the Hague Convention was engaged, whether a defence could be made out under Article 13(b). The factual background was complex, with concerns expressed by both parents about the other’s ability to take care of E. The Spanish local authority had been involved when E was in Spain, and in England and interim care order was in place. E’s experienced foster carer described her as the most traumatised child she had ever cared for – a view shared by the expert child psychologist engaged to assist the court. Having taken into account all of the factual and contextual background, E was found to be habitually resident in Spain immediately before her abduction. On the facts, however, the Article 13(b) defence was made out. The judge found that E required continuity of care and no protective measures as presented to her by F could serve to obviate the grave risk of physical and psychological harm to E if she returned to Spain.

    An interesting element of this case is that the judge acknowledged that comity requires the signatory States to the Hague Convention and BIIR to assume that other signatory States are equally competent to deal with child protection. However, despite attempts to engage with the Spanish Central Authority in Spain, as well as the judge making separate efforts via the European Judicial Network, the Spanish authorities did not engage. The case demonstrates the court will still ensure a robust assessment of its member state counterpart before making a return order, which it did not feel able to do in this case.

Case note, published: 23/09/2019

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See also

  • Father's application seeking an order requiring the return to Spain of his daughter pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction was dismissed after the mother's Article 13(b) defence was found to be made out. Judgment, 20/02/2019, free

Published: 23/09/2019

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