P-J (Children), Re

Factual and Procedural Background

The parties, husband and wife, married in 1995 in Spain and have five children aged between 4 and 13 years. The husband is a Spanish national serving in the Spanish army, and the wife is Welsh and a school teacher. The family lived in Spain until August 2007 when the wife and children moved temporarily to Wales for the children's schooling and to allow refurbishment of the family home in Spain. The husband remained in Spain during this period.

In June 2008, the wife informed the husband she wanted a divorce and did not wish to return to Spain, but the husband persuaded her to return with the children to Spain for a final attempt to save the marriage. The children resumed schooling in Spain in September 2008.

In October 2008, the wife removed the children from their Spanish schools and took them to the United Kingdom without the husband's consent, despite his objections at the airport. The wife initiated proceedings under the Children Act 1989 in the UK, obtaining an interim order. The husband initiated proceedings in Spain and under the Hague Convention and Brussels II Revised regulations seeking the return of the children to Spain.

The President of the Family Division ordered the return of the children to Spain in March 2009. The wife sought permission to appeal, which was granted but ultimately dismissed after full argument.

Legal Issues Presented

1. Whether the children were habitually resident in Wales at the time of removal or remained habitually resident in Spain.
2. Whether the husband had given consent, express or implied, to the removal of the children from Spain to Wales.

Arguments of the Parties

Appellant's Arguments

• The President erred in law by requiring the children to have "roots" in Wales to establish habitual residence, whereas habitual residence may be established even for a temporary or limited duration stay.
• Applying the facts found, the children had become habitually resident in Wales and never lost that habitual residence, even when they returned to Spain.
• The father had given advance consent for the children to return to Wales if the reconciliation in Spain failed, and that consent remained valid at the time of removal.
• A unilateral withdrawal of consent by the father should not be permitted if advance consent was given.

Respondent's Arguments

• The President correctly applied the law and found the children remained habitually resident in Spain.
• Consent to removal must be clear, unequivocal, and operative at the time of removal; consent can be withdrawn prior to removal.
• Consent tied to a future event must be objectively ascertainable and not depend on subjective determinations.
• The removal was clandestine and without the father's consent, who actively objected at the airport.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re: M (Abduction: habitual residence) [1996] 1 FLR 887	Habitual residence of a child is normally that of the parent with care; neither parent can unilaterally change habitual residence when both have custody rights.	The President applied this to find that a temporary move for education was insufficient to change habitual residence from Spain to Wales.
Re: J (A Minor) (Abduction: custody rights) [1992] AC 562	Definition and principles of habitual residence and custody rights.	Cited to support the analysis of habitual residence and the necessity of mutual parental consent to change it.
Re: L (Abduction: future consent) [2008] 1 FLR 914	Consent to removal can be given in advance tied to future events but must be clear, unequivocal, and operative at removal.	The court adopted Bodey J's analysis to reject the appellant's claim of subsisting consent at time of removal.
In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562	Habitual residence is a question of fact determined by all circumstances; distinction between ceasing habitual residence in one country and acquiring it in another.	Applied to explain the necessity of an appreciable period and settled intention to acquire habitual residence.
Nessa v Chief Adjudication Officer [1999] 1 WLR 1937	Ordinary and habitual residence defined with respect to voluntary abode for settled purposes.	Supported the court's approach to habitual residence requiring settled purpose and voluntary residence.
Reg. v Barnet London Borough Council, ex parte Nilish Shah [1983] 2 AC 309	Test for ordinary residence as voluntary abode for settled purposes forming part of regular life.	Used to underpin the definition of habitual residence in this case.
Al Habtoor v Fotheringham [2001] 1 FLR 952	Habitual residence can be acquired despite temporary or trial basis moves; misdirection to require substantial roots.	Referenced to reject the appellant's argument that temporary stay cannot be habitual residence.
Re K (Abduction: Consent) [1997] 2 FLR 212	Consent to removal must be clear, positive, and can be inferred from conduct; withdrawal of consent must be timely.	Guided the court's assessment of the nature and timing of consent in this case.
Zenel v Haddow [1993] SLT 975	Advance consent to future removal can be valid even if timing uncertain; consent must subsist at time of removal.	Considered in relation to whether father's alleged advance consent remained operative at removal.
P v P (Abduction: Acquiescence) [1998] 2 FLR 835	Clandestine removal indicative of absence of consent.	Applied to support the conclusion that the mother's secret removal showed absence of subsisting consent.
Inland Revenue Commissioners v Lysaght [1928] AC 234	Ordinary residence as part of the regular order of life, adopted voluntarily and for settled purposes.	Used to emphasize that Spain was the children's habitual residence as part of their regular life.

Court's Reasoning and Analysis

The court undertook a detailed examination of the concept of habitual residence, emphasizing that it is a question of fact determined by all circumstances, including physical presence, duration, settled purpose, and intention. The court rejected the appellant's argument that temporary or limited duration stays cannot establish habitual residence, referencing authoritative case law to confirm that habitual residence may be acquired for short or trial periods if there is a settled purpose.

The court found that the children remained habitually resident in Spain because their stay in Wales was temporary, agreed upon by both parents for schooling and home refurbishment, and the family life and roots remained centered in Spain. The mother's unilateral change of mind did not alter this status, especially as the children returned to Spain and resumed normal life there before removal.

Regarding consent, the court analyzed the relevant provisions of the Hague Convention, particularly Article 13(a), and considered the nature of consent as requiring clarity, positivity, and operation at the time of removal. Advance consent to future removal is possible but must subsist at the time of removal and be tied to objectively ascertainable conditions.

The court rejected the argument that the father had given continuing consent to the removal, noting the clandestine nature of the removal, the father's explicit objections at the airport, and the mother's awareness that consent was unlikely. The court stressed the difficulties in interpreting consent in the context of family breakdown and emphasized the importance of the court's factual findings over legal artifice.

Holding and Implications

The court DISMISSED the wife's appeal against the President of the Family Division's order.

The holding confirms that the children were habitually resident in Spain at the time of removal, and that the father did not consent to their removal to Wales. The decision authorizes the return of the children to Spain in accordance with the Hague Convention and Brussels II Revised regulations.

No new legal precedent was established; rather, the court applied established principles on habitual residence and consent in international child abduction cases, reaffirming the requirement for clear, operative consent and the fact-specific nature of habitual residence determinations.