B (A Child), Re

In international child-abduction proceedings, the court with retained jurisdiction under Article 10 of Brussels IIa should ordinarily determine whether that jurisdiction has ended. Recognition of a foreign parental-responsibility judgment may be refused under Article 23(b) where, in a non-urgent case, the child was not given an opportunity to be heard and that omission violated fundamental procedural principles. Article 23(c) requires separate consideration of default of appearance, valid service, sufficient time to arrange a defence, and unequivocal acceptance.

Habitual residence is a factual assessment of integration in a social and family environment. Settlement under Article 12 requires a holistic assessment of physical, emotional and psychological settlement at the date proceedings were commenced. Where settlement creates a discretion, the court may conduct a fuller welfare enquiry before deciding whether summary return is appropriate.

The father sought recognition and enforcement in England of Spanish orders concerning B, together with B’s summary return to Spain under the 1980 Hague Convention and the inherent jurisdiction. B had been removed from Spain by his mother in October 2014 and had later been placed in the care of the London Borough of Haringey. Spanish orders made in May 2015 and April 2016 awarded or confirmed custody in favour of the father.

The issues included the validity and recognition of the Spanish orders, the jurisdiction of the English public-law court, B’s habitual residence immediately before removal, settlement in England, the Article 13 exceptions, and the exercise of any return discretion. The court also considered the position of B’s older brother, W, who had been joined to the proceedings.

1. Recognition and enforcement. The Spanish orders were registered, but both were held unenforceable in England. The May 2015 order fell within Article 23(b): it was not genuinely urgent, and B had not been given an opportunity to be heard. The court had not considered whether, and if so how, his voice should be heard. That omission violated fundamental principles of procedure in England and Wales. The April 2016 order was likewise unenforceable under Article 23(b). It was also given in default of appearance and service by edicts had not given the mother sufficient time and opportunity to arrange her defence, engaging Article 23(c).
2. Article 23(c) required a separate examination of default of appearance, service of the document instituting proceedings, sufficient time to arrange a defence, and unequivocal acceptance. Technical service under national law did not necessarily establish sufficient time for a defence; the court had to assess all the circumstances, including the respondent’s conduct.
3. Jurisdiction. B was habitually resident in England and Wales by November 2015, but Spain retained substantive jurisdiction under Article 10 of Brussels IIa. The Spanish court was ordinarily the proper court to determine whether the retained jurisdiction had ended. The English public-law orders were properly treated as urgent provisional protective measures under Article 20. They were not void merely because the English court had not identified that jurisdiction expressly.
4. Habitual residence and settlement. Immediately before his removal, B was habitually resident in Spain. His earlier English integration was shallow. The move to Spain involved the family unit, possessions, accommodation, family relationships and intended schooling, and created sufficient integration within weeks. By 11 September 2017, the date of the Hague application, B was settled in England for Article 12 purposes when physical, emotional and psychological factors were assessed holistically.
5. Article 13. The grave-risk exception was not established because the proposed fuller welfare enquiry and related proceedings would substantially ameliorate the asserted risks. B was of an age and maturity at which his views could be considered, but his wish to live with his mother and, alternatively, his father was a preference rather than an objection to return.
6. Discretion and disposition. The settlement exception created a discretion at large. Hague Convention policy strongly favoured return, but B’s welfare and W’s closely connected position required a fuller welfare assessment. Summary return was therefore deferred. The court would determine B’s welfare position alongside the proceedings concerning W and the mother’s application concerning the care orders. Any return would not occur before the end of the school term and the relevant welfare proceedings.