B (A Child), Re

Factual and Procedural Background

The case concerns a child, referred to as B, who was abducted from Spain by his mother and brought to England between 2 and 4 October 2014. Following the abduction, B had no contact with his father for over three years and experienced a chaotic and unsettled life across England, Scotland, Ireland, and possibly the USA. B was eventually taken into state care in England, living with foster carers for two years, separated from his older brother W and from his mother, who returned to Brazil and was unable to return to England in February 2016.

The father, residing in Spain, has been engaged in litigation in both Spain and England since July 2014, seeking the return of B and enforcement of custody orders made by Spanish courts. The mother resides in Brazil and her actions initiated the events leading to these proceedings. The London Borough of Haringey commenced care proceedings in November 2015 and holds a final care order for both B and W made in June 2016. W was joined as a party to the proceedings in late 2017.

The High Court has been engaged in determining multiple legal and factual issues arising from the father's application for B's return to Spain under the 1980 Hague Child Abduction Convention and linked applications to enforce Spanish custody orders. The proceedings have been protracted, with hearings conducted over five days in June 2018 and extensive documentation and evidence considered.

Legal Issues Presented

1. Whether the Spanish judgments of 21 May 2015 and 7 April 2016 meet the requirements for valid registration and enforcement in England.
2. Whether grounds exist under Article 23 of Brussels IIa Regulation to refuse recognition and enforcement of the Spanish judgments.
3. Whether the West London Family Court had jurisdiction to make public law orders under Part IV of the Children Act 1989 concerning B.
4. Whether B was habitually resident in Spain immediately prior to his removal and whether the 1980 Hague Convention applies.
5. Whether B is settled in his new environment in England and the implications of settlement under Article 12 of the Hague Convention.
6. Whether exceptions under Article 13 of the Hague Convention apply, including grave risk of harm or objection by the child to return.
7. The exercise of the court's discretion regarding B's summary return to Spain.
8. The impact of public law orders on the enforcement of Spanish orders and summary return applications.
9. The timing of any return in relation to B's school term and ongoing public law proceedings.
10. Whether it is in B's best interests to be returned to Spain forthwith under the court's inherent jurisdiction.

Arguments of the Parties

Appellant's Arguments (Father)

• The Spanish court documents indicate that an assessment of B was ordered, which would have included hearing B’s views, though these were frustrated by the mother's abduction and evasion.
• The father argues that an opportunity was given to B to be heard but was not fulfilled due to the mother's actions.
• The father submits that the Spanish judgments should be enforced and that B was habitually resident in Spain immediately before removal.
• He contends that B is not settled in England and that the child's views amount to a preference rather than an objection to return.
• The father accepts that any return should be delayed until after the current school term and transition arrangements.
• He seeks enforcement of Spanish custody orders and summary return under the Hague Convention, though not immediate return.

Respondent's Arguments (Mother)

• The mother argues that B was habitually resident in England and Wales at the relevant time, contending that his habitual residence had shifted from Spain to England before removal.
• She contends that the Spanish judgments should not be enforced due to procedural defects, including lack of opportunity for B to be heard and default of appearance without proper service.
• The mother maintains that B is now settled in England and that his views amount to an objection to return, not merely a preference.
• She argues that summary return should be refused and that a full welfare inquiry should precede any decision to return B to Spain.
• The mother relies on grounds under Articles 23(b), (c), (d), and (e) of Brussels IIa to resist recognition and enforcement of Spanish orders.
• She seeks discharge of the care orders and return of B and W to her care in Brazil.

Local Authority (London Borough of Haringey) Arguments

• The local authority does not resist enforcement of Spanish judgments but does not rely on all Article 23 grounds.
• They argue B was habitually resident in England and Wales by November 2015 and that the West London Family Court had jurisdiction to make care orders under Article 20 of Brussels IIa as urgent provisional protective measures.
• The local authority supports a full welfare evaluation before any decision on B’s return is made.
• They maintain that the care orders were properly made and should not be immediately discharged.

Guardian and Official Solicitor Arguments

• The Guardian submits that B was not given an opportunity to be heard in the Spanish proceedings, constituting a violation of fundamental procedural principles.
• The Guardian considers that B is physically and emotionally settled but not psychologically settled in England, viewing his current arrangements as temporary.
• The Official Solicitor on behalf of W argues that summary return would expose B to grave risk and intolerable situation and that a full welfare assessment is necessary.
• Both advocate for a full welfare inquiry before any return is ordered.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed and multi-faceted analysis addressing the interplay between Brussels IIa enforcement provisions and the 1980 Hague Convention. The court acknowledged the complexity arising from concurrent proceedings and overlapping jurisdictional and procedural issues.

Regarding enforcement of the Spanish judgments, the court found that the judgment of 21 May 2015 was not given in a case of urgency and that B was not given an opportunity to be heard, violating fundamental procedural principles under Article 23(b) of Brussels IIa. The court rejected the mother's arguments under Article 23(c) regarding service and default of appearance, finding that valid service had occurred and that the mother had sufficient opportunity to defend the proceedings but failed to engage.

The court also rejected the ground under Article 23(e) that the Spanish judgment was irreconcilable with the English care order, noting that the local authority's position supported B living with his father and that the Spanish courts retained substantive jurisdiction under Article 10 of Brussels IIa. The court held that the care orders made in England were likely made under Article 20 of Brussels IIa as urgent provisional measures, not substantive jurisdiction, and that the Spanish courts retained substantive jurisdiction.

On habitual residence, the court concluded that B was habitually resident in Spain immediately prior to his removal, despite previous residence in England, due to the family's move to Spain with the intention of permanence and B’s integration into the social and family environment there.

Regarding settlement, the court found that B was physically and emotionally settled with foster carers in England by September 2017 but not psychologically settled, given his expectations to return to family. Overall, the court concluded B was settled for the purposes of Article 12 of the Hague Convention, triggering the welfare exception to summary return.

On the exceptions to return under Article 13, the court found no established grave risk or intolerable situation that would preclude return, noting that protective measures and welfare assessments could mitigate risks. The court assessed B's views and concluded they amounted to a preference rather than an objection to return, though recognizing the subjective nature of this evaluation.

The court emphasized the importance of a full welfare inquiry before ordering return, considering the unique and complex circumstances, the need to coordinate welfare assessments for both B and W, and the differing legal remedies available due to jurisdictional issues. The court acknowledged the flagrant nature of the abduction and its consequences but balanced this against B’s current settled status and welfare considerations.

The court also addressed procedural fairness issues in the Spanish proceedings, highlighting the obligation under English law for courts to ask whether and how a child's voice is to be heard, and found deficiencies in the Spanish process relating to B’s opportunity to be heard.

Holding and Implications

The court held that the Spanish judgments of 21 May 2015 and 7 April 2016 should not be recognized and enforced in England due to procedural defects, particularly the lack of opportunity for the child to be heard, contrary to fundamental principles of procedure.

The court determined that B was habitually resident in Spain immediately before his removal and that the 1980 Hague Convention applied. B was found to be settled in England by September 2017, engaging the welfare exception under Article 12, and no grave risk or intolerable situation exception under Article 13 was established to preclude return.

The court declined to order B’s summary return without a full welfare inquiry, which will be conducted in conjunction with related proceedings concerning B’s brother W. The court recognized the retained substantive jurisdiction of the Spanish courts and the provisional jurisdiction exercised by the English court under Article 20 of Brussels IIa.

The decision directly affects the parties by delaying B’s return to Spain pending welfare assessments and further proceedings. No new legal precedent was established beyond the application of existing legal principles to the unique facts of the case.