AB and BC (Children)

Where foreign proceedings concerning parental responsibility have concluded, jurisdiction is determined by the children’s habitual residence under Council Regulation (EC) No. 2201/2003. A child’s habitual residence is assessed objectively, by reference to residence, settlement and integration, rather than solely by the origin of proceedings or a foreign court’s earlier orders.

Recognition and enforcement may be refused where the order is irreconcilable with a later judgment in the state where recognition is sought. The court must also take account of the children’s best interests, maturity, wishes and feelings, and the practical consequences of enforcement.

The proceedings concerned two children of Spanish parents who had lived in England since 2013 pursuant to a Spanish order. A Spanish court later ordered that custody transfer to the father in Spain. The Spanish proceedings, including an appeal, concluded in July 2018.

The father sought recognition and enforcement in England of the Spanish orders. The mother appealed against registration and enforcement. The children, separately represented through their guardian, consistently wished to remain living with their mother in England. The central issues were habitual residence, jurisdiction after conclusion of the Spanish proceedings, and whether enforcement could be refused under Article 23 of Council Regulation (EC) No. 2201/2003.

1. Habitual residence. On an objective and neutral assessment, both children were habitually resident in England. They had lived there continuously for several years, were settled and integrated in their schools, peer groups and local community, and had moved there lawfully pursuant to an earlier Spanish order.
2. Jurisdiction. Once the Spanish proceedings concluded in July 2018, jurisdiction fell to be considered under Article 8 of Council Regulation (EC) No. 2201/2003. In light of the children’s habitual residence in England, the English court had jurisdiction under Article 17. The subsequent English proceedings were not concurrent with proceedings in Spain.
3. Defences to enforcement. The Article 23(a) public-policy exception is narrow and subject to a high threshold. The court did not need to determine that issue in depth. Article 23(e) applied because the English orders concerning the children were later judgments relating to parental responsibility and were irreconcilable with the Spanish order sought to be enforced.
4. The appeal against enforcement was therefore allowed. The court made child-arrangements orders under section 8 of the Children Act 1989, providing that the children live with their mother and have contact with their father in England and Spain, subject to advance arrangements, renewal of passports, withdrawal of criminal complaints and discharge of the relevant Spanish order. The father was required to ensure the children’s return to England and Wales after contact in Spain.

The judgment records earlier proceedings before the High Court, including [2017] EWHC 2298 (Fam), and proceedings in Spain. The Spanish proceedings concluded in July 2018. The present court allowed the mother’s appeal against registration and enforcement.