Jones, Re

Where intensive enforcement measures have failed and mature children remain steadfastly opposed to return, the court may decline a further injunction against the abducting parent if it has little prospect of securing return and would probably increase family polarisation. The proper focus may be implementation and relationship-building rather than coercive enforcement.

A stay of a return order should not be granted merely because enforcement is presently inactive or difficult. The court must respect the welfare jurisdiction of the primary foreign court, the enforcement structure of Brussels II Revised, comity between jurisdictions and its obligations under article 8 of the Convention. Welfare considerations alone cannot justify a stay where the court’s role is limited.

The case concerned enforcement of an order made by Mr Justice Hedley on 9 October 2012 requiring two children, who had been retained in Wales after a holiday from Spain, to return to Spain. Earlier enforcement attempts had failed after the children refused to leave, and they had subsequently been returned to their mother’s care. The Court of Appeal dismissed permission applications on 7 November 2012 and directed that enforcement return to the High Court.

The father sought an injunction requiring the mother to encourage and facilitate return. The mother and the children’s guardian opposed further enforcement and sought a stay, either indefinitely or until July 2013. The central issues were whether further coercive enforcement was appropriate and whether the return order should be stayed.

1. Further enforcement. The court declined to make the proposed injunction against the mother. Numerous intensive steps had already been attempted, including judicial engagement with the children, contact with their father and assessment by an experienced Cafcass officer. The children remained steadfast in their refusal to return, making it extremely unlikely that the proposed order would succeed.
2. An order carrying the prospect of committal was likely to polarise an already fractured family and delay, rather than secure, reunification. The more appropriate objective was implementation through time, restored relationships and reflection. The mother’s conduct was strongly deprecated, but that did not make a coercive order proportionate or effective.
3. Stay. Although the court accepted that it probably had jurisdiction to grant a stay under FPR 2010 r 4.1(3)(g), it refused both an indefinite and a time-limited stay. There was no current challenge to the return order, and Spain retained the welfare jurisdiction under Brussels II Revised. The procedures under article 39 and the principle of comity militated against a stay which might undermine the Spanish decisions.
4. The absence of active enforcement did not itself require a stay. There was no evidence that the father would attempt a disorderly implementation. The children’s welfare-based request for a breathing space could not overcome the court’s limited enforcement role or justify interfering with the welfare decisions of the Spanish court. The application was therefore rejected, and the return order remained in force.
5. As an ancillary point, children abducted to or retained in Wales in Hague Convention proceedings are not thereby ordinarily resident in Wales for the purposes of the statutory allocation of Cafcass functions. Such cases properly fall within Cafcass rather than CAFCASS CYMRU when a report or guardian function is required.

• Court of Appeal: Permission applications by the mother and the children were dismissed on 7 November 2012. The return order was directed back to the High Court for enforcement purposes.
• High Court (Family Division): Theis J declined to make the further injunction sought by the father, refused a stay and directed that the existing return order remain in force.