E, Re

In Hague Convention proceedings, an English court should not go behind a clear and apparently appropriate custody order made by a competent court of another Contracting State, particularly where no appeal has been brought. Rights of custody may be held by a court or other institution, as well as by an individual. A retention is wrongful where it breaches rights conferred by such an order and the child was required to return under its terms. An Article 13(b) defence requires a sufficiently grave risk of physical or psychological harm, or an intolerable situation. That risk may be managed by protective undertakings securing the child’s welfare pending a substantive decision in the State of habitual residence. An Article 15 declaration need not be treated as determinative where the English court can independently establish wrongful retention.

The father sought the return of E, a seven-year-old child, from England to Spain under the 1980 Hague Convention. The mother had brought E to England in 2003, pursuant to an earlier consent order recognising the Spanish court as the appropriate court for custody matters. The Spanish court later made a Provisional Measures Order granting shared care and custody rights and providing for E’s residence with the parent resident in Spain, subject to specified arrangements.

The mother kept E in England after the end of the 2004 summer school term. The Spanish court subsequently declared the retention wrongful under Articles 3 and 15. Before the High Court, the mother challenged the existence of Convention rights of custody, the effect of the Spanish orders and the Article 15 declaration. She also relied on Article 13(b), referring to E’s relationship with her father, the father’s earlier abduction of E, and the mother’s serious medical condition.

1. Wrongful retention. The retention was wrongful under 1980 Hague Convention Article 3. The Provisional Measures Order clearly conferred shared care and custody rights and required E, who was then living in England with the parent resident outside Spain, to return to the father in Spain at the end of the school term. The mother understood that this was the effect of the order and retained E in breach of it (paras 31–43).
2. Effect of the Spanish orders. In summary Convention proceedings, the English court should not investigate the correctness of the law applied by a competent court of another Contracting State where the order relied upon is clear, apparently apt to establish custody rights and unappealed. The case of Re JB (Child Abduction) (Rights of Custody: Spain) [2004] 1 FLR 796 was distinguishable because there had been no prior Spanish order or application concerning custody. The Spanish court’s continuing control over E’s residence was sufficient. Rights of custody could also be infringed where they were held by an institution or other body, including a court: Re H (Abduction: Rights of Custody) [2000] 2 AC 291 (paras 33–39).
3. Article 15. It was unnecessary and inappropriate to investigate the status or effect of the Spanish Article 15 declaration because the requirements of Article 3 were independently established. In an appropriate case, such a declaration might not be determinative (paras 40–41).
4. Article 13(b). The evidence raised a possible risk of psychological harm or an intolerable situation, particularly because of the mother’s serious medical condition and possible surgery. The risks could be avoided by sensible arrangements and protective undertakings. The mother was therefore ordered to return E to Spain, subject to undertakings regulating E’s residence, contact, medical treatment and the father’s enforcement of the provisional orders until an inter partes welfare decision was made by the Spanish court (paras 44–55).