X, Y And Z (Children) (Retrospective Leave To Remove From the Jurisdiction)

A Hague Convention return order does not determine the merits of children’s future care. The court should respect and support that order and should not ordinarily determine welfare arrangements before the wrongful removal is rectified. However, prolonged delay, settlement abroad and changed circumstances may make it insufficient simply to stay a welfare application while enforcement continues abroad. Where jurisdiction is retained under Council Regulation (EC) No 2201/2003, the court may proceed to a welfare determination, with expedition and appropriate safeguards, including joinder of the children and appointment of a guardian.

The mother removed three children from England to Spain in March 2013 without the father’s knowledge or consent. The Spanish courts, acting under the Hague Convention, ordered their return. That order was upheld on appeal but remained unenforced.

In June 2016 the mother applied in England for retrospective leave to remove the children temporarily and for permission to relocate them permanently to Spain, relying on delay, settlement and alleged domestic abuse. The father sought a stay or refusal of the application until the Spanish return order was obeyed. The issues were whether the English court should exercise its retained jurisdiction under Article 10 of Council Regulation (EC) No 2201/2003 and what procedural steps were required before determining welfare.

1. Return order. The Spanish order determined that the children had been wrongfully removed from England and should be returned. It did not determine the merits of the parents’ dispute about custody or future care. The English court should respect the order and should not ordinarily determine future arrangements until the wrongful removal had been rectified.
2. Contempt and delay. That approach was consistent with the discretionary rule that a court will generally not hear a party in contempt until the contempt has been purged, as discussed in Hadkinson v Hadkinson [1952] P.285. It did not require an indefinite stay. After almost three and a half years, with enforcement delayed in Spain and the children likely settled there, it was no longer sufficient, or in their interests, simply to await enforcement.
3. Welfare determination. A decision based on the children’s future welfare needs had to be taken in England, having regard to the retained jurisdiction under Article 10 of Brussels IIA. The proceedings should be expedited.
4. Participation and directions. The children were to be joined as parties and an officer of CAFCASS appointed as guardian under rule 16.4 of the Family Procedure Rules 2010. The guardian’s report should address their circumstances, stability and settlement in Spain, views about returning to England and views about contact with the father. Further directions could address evidence, disclosure, attendance or video participation, and protective orders or undertakings.
5. The mother’s contact details could be inspected by CAFCASS but were not to be disclosed to the father without further order. A copy of the judgment was to be sent to ICACU.