K (Children)

For the purposes of the Hague Convention, the law of the child’s habitual residence includes that state’s private international law rules. Where those rules refer the question of parental responsibility to the child’s national law, the forum court must also consider the foreign state’s public-policy exception. Applying English law to deny an unmarried father parental responsibility may be contrary to Spanish public policy where paternity is established, the father is exercising parental control and custody, and the result deprives the child of the benefit and protection of those rights. The relevant concern is the child’s equality and welfare, rather than merely the father’s entitlement to automatic parental rights. In such circumstances, the removal may breach the father’s rights of custody under Articles 3 and 5 of the Hague Convention.

The father and mother, both British nationals, lived with their two children in Spain. The children were born and habitually resident there. After the mother removed them to England, the father commenced Hague Convention proceedings seeking their summary return.

The preliminary issue was whether, at the time of removal, the father had rights of custody for the purposes of Articles 3 and 5 of the Hague Convention. The English court had to determine Spanish law, including the effect of Spanish conflict-of-laws rules and the public-policy exception. An attempted reference to the Spanish courts under Article 15 was considered impracticable.

1. Applicable law. Under Articles 9.1 and 9.4 of the Spanish Civil Code, the character and content of filiation and parent-child relations, including parental authority, are governed by the child’s national law. The children were British, so English law would ordinarily determine whether the father had parental responsibility and custody rights.
2. English-law position. Under section 4 of the Children Act 1989, as then applicable, the unmarried father had not acquired parental responsibility. The Spanish birth certificates did not satisfy the statutory registration route, and the father had made no agreement or application conferring parental responsibility. On that basis alone, English law would not give him rights of custody under Article 3.
3. Spanish public policy. The court preferred the father’s expert evidence that applying English law in these circumstances would engage Article 12.3 of the Spanish Civil Code. Spanish law treated parental authority as a function for the benefit and protection of the child, normally attaching to both parents once filiation was established. Article 39.2 of the Spanish Constitution required children to receive equal protection regardless of filiation.
4. The relevant question was not whether English law was arbitrary in giving an unmarried father a right to apply for parental responsibility. Rather, applying it at the time of removal would attribute custody to the mother alone without taking the children’s welfare interests into account and would discriminate between children of married and unmarried parents.
5. The Hague Convention’s objectives supported, rather than defeated, that conclusion. Spain was the children’s habitual residence, and the father was exercising parental control and custody rights under Spanish law. The removal was therefore in breach of rights of custody attributed to him under Spanish law for the purposes of Articles 3 and 5 of the Convention. The alternative submission based on recognition of the birth certificates under Article 46 of B II R was unnecessary and rejected.

First-instance determination of a preliminary issue in Hague Convention proceedings. No prior appellate decision is stated in the judgment.