T & J (children), Re

Where children are wrongfully removed from their state of habitual residence, the court hearing a Hague Convention application ordinarily considers the position at the time of removal. However, where the habitual-residence court has already made a considered custody decision before the return application is heard, recognition of that decision under Brussels II b may require non-return. An interim judgment may be recognised incidentally without prior registration for enforcement. The recognising court must not review the foreign court’s jurisdiction or the substance of its decision. Acquiescence depends principally on the applicant’s subjective intention, subject to an exceptional objective case based on clear words or conduct. The Article 13(b) defence requires a high degree of intolerability.

The mother sought the summary return of her two children to Spain under the Hague Convention after the father unilaterally brought them to England. The children had been habitually resident in Spain, and the father conceded that the removal was wrongful under Article 3.

After the removal, the Spanish court considered both parents’ applications for provisional custody. It awarded interim care and custody to the father, directed that the children remain in England, and made extensive contact arrangements for the mother. The mother then commenced Hague Convention proceedings in England.

The issues were whether the mother had acquiesced, whether the Spanish judgment should be recognised under Council Regulation (EC) No 2201/2003, and whether return would expose the children to a grave risk under Article 13(b).

1. Application dismissed. The mother’s application for summary return was refused. The court recognised the validity of the Spanish interim custody judgment and made consequential orders concerning passports, contact, the father’s English proceedings and costs.
2. The father’s removal was wrongful for Article 3 purposes. Nevertheless, the court had to consider the legal position at the time of the Hague Convention hearing. The Spanish court, being the court of the children’s habitual residence, had meanwhile conducted a full welfare-based inquiry and ordered that the children remain in England with their father pending final proceedings.
3. Under Articles 21(4), 24 and 26 of Council Regulation (EC) No 2201/2003, the Spanish judgment could be recognised incidentally in these proceedings without prior registration for enforcement. None of the grounds of non-recognition applied. The court could not review the Spanish court’s jurisdiction or the substance of its decision.
4. Recognition of the Spanish judgment meant that an English return order would conflict with the Regulation’s precedence over the Hague Convention in matters of parental responsibility. The purpose of the Hague Convention had effectively been achieved because the habitual-residence court had determined the immediate custody issue.
5. The acquiescence defence failed. Applying Re H (Abduction: acquiescence) [1997] 1 FLR 872, the mother had not subjectively intended to abandon her right to seek return. Her Spanish proceedings demonstrated the contrary, and her failure to use the Hague Convention earlier was explained by her lack of knowledge of it. Her conduct had not clearly and unequivocally led the father to believe that she would not seek summary return.
6. The Article 13(b) defence was also unavailable. The evidence did not establish substantial physical or psychological harm, and the disruption said to arise from a return followed by a possible return to England did not approach the high threshold of an intolerable situation.
7. The court observed that the Hague Convention’s concepts of removal and retention are distinct and mutually exclusive, following Re H, Re S (Minors) (Abduction: Custody Rights) [1991] 2 AC 476. It left open whether, in an analogous case outside the European Union, the Convention itself might be construed to recognise a later custody decision as validating or excusing the original removal.