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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> T & J (children), Re [2006] EWHC 1472 (Fam) (20 June 2006) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2006/1472.html Cite as: [2006] EWHC 1472 (Fam)

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/06/2006

Sir Mark Potter, P:

1. In these Hague Convention Proceedings, the plaintiff mother applies for the return of her children T, a girl born on 25 August 1998 and now almost eight, and J, a boy born on 31 December 1999 and now aged 6, to the jurisdiction of the Government of Spain pursuant to the Child Abduction and Custody Act 1985.
2. The parties were married in 1998. The mother is Estonian and the father is British. They met in Estonia and three years later, shortly after the birth of T, married on 5 September 1998 in Kidderminster, England. In late 2000 they moved with T and J to Spain from the Czech Republic where they were then living and became resident in Spain.
3. In Spain, the father at first worked as a salesman and the mother, who was not employed, was the principal carer for the children. However, quite soon their roles were reversed in that the defendant became unemployed and the plaintiff became busy as a self-employed real estate agent. The marriage became unhappy and the parties decided to separate. At that time the family were living in Malaga at Avenida las Palmeras, Conjunto Los Nadales, Apartment P-22, 29630 Benalmenda Costa, Malaga, the habitual residence of the children being in Spain.
4. The mother made arrangements to move with the children to a new apartment around the corner from where they were then living.
5. On 24 September 2005, whilst the mother was moving furniture to her new apartment, the father offered to take the children to a restaurant and then to a playground to enable the mother to handle the furniture removal. In the absence of mother and without her consent, he flew directly to England that day with the children, a fact of which the mother became aware only when he telephoned her that evening from England so to inform her.
6. The mother attended the local police station, but the police were unwilling to help because the parties were not divorced.
7. The mother swiftly consulted Spanish solicitors. She was at the time unaware of the Hague Convention and states that she was not advised of its existence or a possible remedy under its terms. On or about 27 September she commenced proceedings of a quasi-criminal nature in the Spanish court for the return of the two children to Spain and, on 9 November 2005 began matrimonial proceedings asking for orders for separation, custody and return of the children. The quasi-criminal proceedings were the subject of some kind of short preliminary hearing on 6 February 2006, when the father's statement was taken, but the proceedings appear to have hung fire since, and neither party has sought to rely upon them as relevant.
8. On 15 November 2005, in interim proceedings for "temporary and prior measures" the wife sought an ex-parte order for care and custody of the children, but it was refused on the grounds there were no special reasons for urgency or danger advanced which justified an order without hearing the defendant father and the Public Attorney.
9. On 17 January 2006 the father requested and was granted a lawyer at public expense.
10. On 2 February 2006 the father commenced proceedings in the Worcester County Court both for divorce and under Children Act 1989 for a residence order in respect of the children. He made clear in the application papers that the mother's preliminary proceedings were afoot in Spain relating to the temporary custody of the children "until a full divorce hearing is heard", but that no divorce petition had been filed by either party as yet. Those proceedings have been stayed by order of Hedley J on 14 February 2006 when giving preliminary directions for the determination of these proceedings and in resisting the order sought by the mother for the return of the children, the father now undertakes to withdraw those proceedings.
11. On 6 February 2006 the Spanish court heard the mother's provisional measures application for separation, grant to her of parental authority over the children and their care and custody, removal of the father's parental authority over the children, an order forbidding the children leaving Spain, and confiscation of the father's and children's passports. The father brought a counter application for care and custody of the children with visiting and communication rights to the mother. Each claimed financial provision against the other in respect of the children's care.
12. A number of witness depositions were received in evidence and oral evidence was taken from the mother, the father (who came from England to attend) and several witnesses.
13. The written judgment of the court is before me in translation. It is dated 9 February 2006. However it is clear from the court stamp that it was not issued till 16 February 2006 and it was only communicated to the parties on 21 February 2006.
14. The judgment is careful and fully reasoned. At section 2 of the reasoning it states:

"Our sole purpose here is to decide the provisional measures by which the spouses are to be governed and those relating to the children of the marriage starting from two basic premises: the existence of the problem which arose between the parents out of the de facto separation to which they have not found an answer, in that the parties have been unable to reach an agreement, and the need to impose solutions which will to some degree not be to the parties' liking; and the merely provisional nature of the solutions intended as a precautionary measure while the main proceedings are in progress, in order to regulate the serious and obvious problem which has arisen."

15. In section 3 of the judgment, reference is made to various provisions of the Spanish Constitution and civil code and the requirement that

"the measures to be taken concerning children must always be dictated by what is for their benefit, not to be confused with the parent's interests…. The aim is always to see that the children are affected as little as possible by the separation, whether this be of a married couple or co-habiting partners."

There is a very full review of the principles applicable and of the facts taken into account.

16. At p.5 of the judgment in translation, having found and recorded that in mid-September the parties had agreed to separate, but no specific agreements regarding the children had been proved (Finding 4), the court found and recorded at Finding 6:

"On 24 September last year, one week after the separation agreement was put into effect, [the father] took his two children to England, and specifically to Ashleigh, Stousport-on-Severn, Worcestershire, a decision which he took unilaterally and without the consent of his wife, in the belief that the children would be better off there, also to improve his financial situation and to obtain public assistance to improve conditions for himself and his children. He has been living there since then, looking after and attending to the children, and his mother, brother and other members of the family also live there. "

17. It is recorded at Finding 7 that:

"… [the father] has informed [the mother] of where the children were and never concealed their whereabouts, and has even invited [the mother] through relatives to visit her children in England, although she, for reasons unknown, has not accepted, and since September last year has not had any contact with these children, apart from a few telephone calls, the frequency of which are not mentioned either"

18. At the end of the findings of fact on p.6 of the judgment it is stated:

"It is clear that both in the [mother's] bill of complaint and in the hearing, both parties have made serious accusations against one another, which, are, respectively, the abduction of the children by the father, and offensive behaviour, a hard and despotic character, disorderly conduct, leaving the home and "addictions". It is also recorded that on 27 September, the wife made a complaint against the husband to Duty Magistrates Court No.3 of this city, for taking the children without her consent and by deceit. For his part, [the father] accuses his wife of neglecting and mistreating the children, on repeated occasions and in different countries, although he admits he did not report these incidents until recently, when he did so to the English courts, and has supplied a copy of the accusation. He did this when he learned of the action and the attentions of the petitioner regarding the children, and explained that until then he was protecting them and was very much in love with his wife."

19. The court concluded that it was evident that there were no factors or circumstances which would prevent either of the spouses from obtaining care and custody of the children, both being fully capable and having expressed a wish to do so. It was stated:

"The fact that the father took the children to England is not in itself a reason for tipping the balance in favour of mother for the award of care and custody, as he has explained the reasons which led to this, and from the enquiries so far we cannot conclude that this has harmed the children in any way; the harm comes from the fact that they were unable to live with their parents because of the matrimonial crisis and de facto separation and the inevitable dilemma of which parent to live with; nor can we assume because the children normally lived in Spain during the last few years, they will be better off here, more settled, in better condition and happier than they would be in England at the present time."

20. The judgment then refers to the fact that the children are British citizens and have returned to a country where their father is, and where they have family connections with other relatives, and where they had been attending a school into which they had settled since September 2005. The judge stated:

"… having regard to the provisional nature of these measures, I believe that for the time being, and without prejudice to what might be decided in subsequent proceedings, it would be more advisable and beneficial for care and custody of the children to be granted to the father, who, while the parents were living together, attended to and cared for the children more often than their mother, and who has also done so exclusively since he went to England on 24 September last year. Since then the mother has not had the children with her or visited them, despite the fact that she was aware of their location and had been invited to do so, and has only spoken to them by telephone. She has therefore created an established situation, even if it is one sought by the respondent, and for the time being therefore, as a provisional measure, I believe it should be maintained in the children's interest, particularly bearing in mind from the documents supplied and the witnesses who have given depositions it is evident that the children are now well into their school education and are happy, making progress and settled in their surroundings, with no evidence of abandonment, risk or neglect, and that the father is apparently seeing to the children's schooling and attending to and caring for them and that they are in a suitable family environment which is familiar to them. Without further evidence or proven facts, it would not be appropriate for the time being to alter this de facto custody by placing the children in the custody of their mother, with the associated immediate change of residence, school, environment, home…etc"

21. The court went on to refer to the fact that the father was in a better position to dedicate time to the care and attention to the children for which he was entirely capable, than the mother, who had less time to dedicate to those tasks.

"However painful this measure may be for the mother, and however reproachable the father's conduct may appear to be, the assignment of care and custody to one of the parents, albeit provisional, must be made having regard to the good of the children and the stability they need…. Until reports considered relevant to the issue can be obtained in relation to the parents and children, I believe it best for the time being that they should continue with their father."

22. The court went on to say that there should be the fullest possible contact with the mother by means of visiting arrangements and ordered that the Easter holiday, and any others lasting a week or more according to the English school calendar, except the summer and Christmas holidays, should be spent entirely with the mother; that the Christmas holidays should be shared; that the summer holidays should be spent for one third of time with the father and the other two-thirds with the mother; and that the mother should have the right to visit the children and have them with her on any weekend she chose giving sufficient notice to the father.
23. Various other provisions were made relating to the use of the Spanish family home and its contents and maintenance. The mother's application for an order preventing removal of the children from Spain was refused as inappropriate. The judge stated that such an order:

"Lacks sense and effect in the present case as it does not match the purpose for which the measure was legally designed. It is therefore not appropriate to apply it at the present time, given the facts described; it has been shown that the father has been living with his two young children since September in England, of which country they are citizens, and where they are receiving their schooling. This is known to [the mother] at, and when the father was summoned and there has been nothing in his conduct so far to suggest any contempt of court."

24. The order made stated that the measures would continue for thirty days, unless within that time "an action for final measures" (i.e. for divorce and/ or judicial separation) were submitted within thirty days. It stated that the ruling was "firm" and that there was no right of appeal in accordance with the provisions of Article 771.4 of the Spanish code of Civil Procedure.
25. Thereafter the father filed a divorce petition within 30 days against the mother under Article 85 of the Spanish Civil Code, in respect of which the court accepted jurisdiction and ordered a response from the mother within 20 days. It also united the court files in respect of the father's divorce and the mother's earlier application. It expressly ordered that the earlier provisional measures order remain in force. As a result the provisional measures ordered will continue until the hearing of the divorce proceedings, which I have been told is likely to take place at the end of July or in August. In the divorce proceedings, the father claims care and custody of the children and proposes a "Visiting Regime" much along the lines already granted as a temporary measure.
26. The mother states, that she was unaware of the existence of the Hague Convention or any remedy it might afford at the time of the hearing on 6 February 2006. It was at that time that the father served her with the proceedings which he had issued in the Worcester County Court. Her Spanish lawyers did not so advise her and, resorting to the internet on being faced with two sets of proceedings, she first learned of the existence of the Hague Convention. She then immediately started these proceedings, which were issued on 13 February 2006.
27. Given her representation by Spanish lawyers, the mother's absence of knowledge of the Hague Convention is surprising. However, there is no contradictory evidence before me. The very full judgment of the Spanish Court from which I have quoted contains no reference to the Hague Convention. However, as already made clear, the court was aware of the allegations of abduction and the mother's commencement of criminal proceedings (before another court) in relation to it. The court simply stated in that respect:

".. leaving aside the criminal issues, which is certainly not my responsibility to examine, we can say that at the present stage of the proceedings we are unable to accept as fact [the mother's] claim of abduction, or of the illegal removal of the children by the father to another country, when in the statements contained in the accusation it is evident they had already agreed the separation the month before and that this separation took place before the 24 September and the move was actually in progress when Mr Baker left with the children."

28. In his affidavit dated 20 February 2006 he states that he does not accept that he wrongfully removed the children from Spain or that he has acted in breach of the mother's rights. He also disputes that the children had their habitual residence in Spain. However, he has since conceded through his counsel that they were so resident and that his unilateral removal of the children was wrongful for the purposes of Article 3 of the Hague Convention. He describes his close relationship with the children. He gives a picture of an unconventional and nomadic marriage prior to the settlement of the parties in Spain and asserts that the mother has never had the same close relationship with the children as he has enjoyed. In particular, he asserts that in Spain, by reason of her business activities, he was far more involved in their care than she was. He sets out the position relating to the present situation of the children in England, their progress and the fact that they have settled in well at share. He states that they show no sign of missing their mother. He observes that the mother could have visited the children at any time in England at a flight cost of only £50.00 and yet has not done so. He asserts that he believes that after his departure she accepted that the children were better placed with him in England and that they would stay with him: hence her failure to take steps to seek their return under the Hague Convention.
29. He makes a reference, which is difficult to understand, to the mother's commencement of preliminary proceedings in Spain not having been "timely". He states that she only did so following the issue of proceedings by him in the United Kingdom in the Worcester County Court and asserts that the issue of divorce is now one to be resolved in the United Kingdom on the basis of his own issued petition. However, his counsel has made clear that that is no longer his stance in the proceedings, that he does not propose to pursue the proceedings here, pursuing instead his divorce petition in Spain, and (as already mentioned) undertakings are offered by him in that respect. He goes on to assert that he believes that the plaintiff initiated these proceedings fearing that she would fail to secure a successful outcome to her preliminary proceedings in Spain and that, her commencement and continuation of the Hague proceedings in parallel with the Spanish proceedings is an abuse of process. However, that assertion has not been pursued by his counsel.
30. Miss Meyer has made clear before me that three defences are relied on in these proceedings.
31. The first is that, following their removal, the mother subsequently acquiesced in the retention of the children in England pursuant to Article 13 (a) of the Hague Convention. It is submitted that the mother knew of the whereabouts of the children from the evening of 24 September 2005 and how to contact them; yet she did not issue any proceedings for their summary return pursuant to the Convention for some four and a half months after the removal. Instead, she chose to issue substantive proceedings in Spain in which she was at all times fully legally advised and represented and in which the father played a full role. By her failure to demand of the father the immediate return of the children and to avail herself of the child abduction procedure, but rather to engage in fully contested proceedings in Spain, the mother led the father to believe that she was not asserting or going to assert her right to the summary return of the children and that in those circumstances her actions amounted to acquiescence. In that respect the father relies upon the judgment of Lord Browne-Wilkinson in the House of Lords decision Re H(Abduction: acquiescence) [1997] 1FLR 872 at 884G-H. Having made clear that the question of acquiescence depends upon the subjective intentions of the wronged parent, to be determined as a question of fact by the trial judge on such material as is before him, Lord Browne-Wilkinson said at 884G:

"There is only one exception. Where the words and actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced."

32. I propose to deal with this defence shortly, because it is clear to me that it has not been made out. So far as subjective intention is concerned, there is no evidence to show that the wife is not telling the truth when she states that she was unaware of the existence of The Hague Convention or the remedies it might afford until after the Spanish proceedings have been heard (but before their result was known). It is perfectly clear that, from the actions she took in Spain with a view to recovering the children, she was not acquiescing in their removal, and she cannot be regarded as having acquiesced by "electing" to proceed in Spain, rather than by taking summary Convention proceedings in England, because she was unaware of the latter possibility. As to the establishment of the exception expounded by Lord Browne-Wilkinson, it does not seem to me that the evidence of the husband as set out in his affidavit sustains the case made by counsel in argument that the words or actions of the mother in proceeding in Spain unequivocally showed, let alone led the father to believe, that she was not going to assert a right to the summary return of a child. Nowhere does the father state that he himself was aware of the existence of The Hague Convention, or a right on the part of the mother to take summary proceedings under its terms, until he was served with these proceedings on 21 February 2006. Nor did he learn of the Convention in the course of the Spanish proceedings which appear to have been conducted without any express reference to it.
33. The second defence advanced by the father relies upon the judgment and order of the Spanish court dated 9 February 2006. It is submitted that, despite the father's concession that his original removal of the children was wrongful for the purposes of Article 3 of the Convention, the unlawfulness of that removal has been overtaken by events, namely a full consideration by the Spanish court on welfare grounds of the appropriate place for the children to reside (i.e. England) pending the final hearing of the mother's separation and the father's divorce proceedings. In these circumstances, the order of the Spanish court should be recognised and given force by this court in accordance with Council Regulation (EC)No.2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of Parental Responsibility (Brussels II b), which, by Article 60(e) provides that, in relation to Member States, the provisions of Brussels II b "take precedence over the [Hague Convention 1980] in so far as they concern matters governed by Brussels II b".
34. It is surprising, in my view, that it should be necessary to resort to the provisions of Brussels II b to achieve the result which Miss Meyer seeks (see further below). However, I accept her submission nonetheless.
35. The primary rationale underlying the Hague Convention is to ensure that decisions as to the welfare of children, and questions where and with which parent they should reside, are taken in the country of the child's habitual residence. In this case, as a result of proceedings initiated by the mother in Spain, by the time the matter comes before this court for decision as to whether an order for the return of the child should be granted under the terms of the Hague Convention, those purposes have been achieved, in the sense there has been a full and careful hearing of the issue by a Spanish court in possession of all the relevant facts going to its welfare decision, as well as the full circumstances of the father's removal of the children. The Spanish court has specifically vested interim custody in the father on the basis that the children should continue to reside in England with the father as their main carer, and with appropriate and beneficial educational arrangements, pending a full and final hearing.
36. By virtue of the relevant Spanish law, that interim custody order is not capable of appeal and will remain in place till the resolution of the divorce and/ or separation proceedings. As uncontested expert evidence placed before me has made clear, since an order for the return of the children to Spain is no more than that (i.e. it does not involve any award of care or custody), in the event of such an order being made, so far as the Spanish court is concerned the father would have the right to return with the children to England without any breach of the letter or spirit of the Spanish court order.
37. Recitation of these facts is sufficient to make clear that, if, as is submitted on behalf of the mother, this court is obliged to return the children as requested by the mother, it would defeat rather than assist the overall purpose of the Hague Convention as I have stated it. Fortunately, by application of the provisions of Brussels II b, such a result is avoided.
38. The preamble to Brussels II b makes clear at Clause 12 that:

"The grounds of jurisdiction in matters of Parental Responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criteria of proximity. This means that jurisdiction should lie in the first place with the Member State of the child's habitual residence, except for certain cases of a change in child's residence or pursuant in agreement between the holders of parental responsibility."

39. Clause 17 provides that:

"In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to which the child has been wrongfully removed or retained, should be able to oppose his or her return in specific, duly justified cases."

This appears to be a reference to the specific defences provided under the Hague Convention pursuant to Articles 12 and 13 which are referred to in Article 11 of Brussels II b; however, it does not specifically so state.

40. Clause 17 goes on to provide:

"However, such decision could be replaced with a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child the event should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to which the child has been removed or retained."

Thus Clause 17 touches on the effect of a subsequent decision by the court of the Member State of habitual residence requiring return. It does not envisage a situation, as in this case, where a decision has already been made by the court of the Member State of habitual residence sanctioning ex post facto the removal of a child.

41. Clause 21 of the preamble states that:

"The recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and grounds for non-recognition should be kept to the minimum required."

42. Article 10 of Brussels II b makes plain that:

"In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention should retain their jurisdiction until the child has acquired a habitual residence in another Member State and…"

there has either been acquiescence by each person, institution or other body having rights of custody, or the child has resided in that other Member State for a period of at least one year and at least one of a number of other conditions (none of which is applicable to this case) is met. Article 10 is not directly in point in this case. However, the words quoted, emphasise the primacy of the jurisdiction of the Member State of the child's habitual residence.

43. Article 11 sets out a number of provisions governing return of a child who is the subject of a Hague Convention application. It emphasises certain instances where the court of the state applied to cannot refuse to return a child under Articles 12 and 13 of the Hague Convention. It sets out the procedure to be followed following an order for non-return, and paragraph 8 of the Article provides that, notwithstanding a judgment of non-return pursuant to Article 13, any subsequent judgment by the court of the state of the child's habitual residence shall be enforceable in accordance with the recognition and enforcement provision contained in section 4 of chapter III of Brussels II b. Again, it does not touch on the situation where the court of the State to which the child has been removed has available to it, before its decision is made, a court decision from the State of the child's habitual residence which sanctions the removal of the child.
44. So far as recognition of such a judgment is concerned, Article 21 of Brussels II b provides that

"1. The judgment given in a Member State should be recognised in the other member States without any special procedure being required".

Paragraph 4 of Article 21 provides that:

"4. Where the recognition of the judgment is raised as an incidental question in the court of a Member State, that court may determine that issue".

45. Articles 22 and 23 set out a number of grounds of non-recognition for judgments relating to divorce and legal separation (Article 22) and parental responsibility (Article 23). None of those grounds applies in this case.
46. Article 24 prohibits any review of the jurisdiction of the court of origin and Article 26 provides that

"Under no circumstances may a judgment be reviewed as to its substance."

47. Section 2 of chapter 3 of Brussels II b deals with applications for a declaration of enforceability as a separate matter from the simple question of recognition of the judgment. (See Article 21 above) Article 28 provides:

"1. A judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.

2. However, in the United Kingdom, such a judgment should be enforced in England and Wales, in Scotland or in Northern Ireland only when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom."

In subsequent Articles the various procedures for enforcement are dealt with.

48. The father has taken no step to date for formal recognition of the Spanish judgment or enforcement of the Spanish judgment in this country by applying for registration under Article 28(2) of Brussels II b. It is clear, however, that he will be in a position to do so, and to supply the necessary evidence in support of an application under Rules 7.41-7.48 of the Family Proceedings Rules 1991 as amended, as soon as he has obtained the appropriate certificate from the Spanish court: see FPR 7.43(1) (a) (v) and Annex II to Brussels II b.
49. However, so far as these proceedings are concerned, that does not seem to me necessary for the purposes of this court according recognition under the terms of Article 21(4). So far as the Spanish judgment is concerned, Mr Hosford-Tanner has not sought to argue that it is invalid or is not susceptible of recognition. He has merely observed that the absence of application for recognition on the part of the father is not surprising because the judgment is only an interim judgment and might be modified following a change of circumstances. However, if and insofar as he challenges the validity or force of the Spanish judgment, I determine that issue against the mother under Article 21(4), and hold that the Spanish judgment be recognised for the purposes of these proceedings.
50. That being so, it is plain to me that, were I to make an order for the return of the children to Spain, I would be failing to give effect to my recognition of the Spanish judgment of 9 November 2005 and thus failing to accord precedence to Brussels II b over the Hague Convention in that respect.
51. In seeking to avoid such a conclusion, Mr Hosford-Tanner has relied upon two principal submissions. First, he submits that, the father having (as is conceded) originally removed the children in breach of Article 3 of the Convention, the die was then cast and the unlawful character of the removal founded the right of the mother to proceed under the Hague Convention so that, in the absence of a conventional defence under Articles 12 or 13, she is entitled to have an order for return made in her favour. Second, that the Spanish court decision if recognised, is not inconsistent with an order being made by this court for the return of the children because, when coming to its decision, the Spanish court was evidently unaware of the Hague Convention, did not have in mind the remedies which it presented to the mother and, if presented with the opportunity to reconsider the matter inter partes on the basis of changed circumstances, might be prepared to revise its decision.
52. As to the first submission, when considering the inter-relationship of the Hague Convention with Brussels II b, and whether or not an order for return of a child under the Hague Convention would be in conflict with the purpose and provisions of Brussels II b, the court can only sensibly proceed upon the basis of the state of play which prevails at the time of the hearing rather than resolving the matter on the basis of the situation existing at the time of commencement of the proceedings. If as unusually happened in this case, proceedings under the Hague Convention are commenced at a time when the issue sought to be resolved, namely where and with which parent the child should be residing, is already before the court of the Member State where the child is habitually resident, and if, prior to the Hague Convention hearing, that issue is resolved in favour of the abducting parent, then the whole thrust and purpose of Brussels II b (as well as in spirit, if not the letter of the Hague Convention itself) operates in favour of an order for non-return. I would add in parenthesis that the question whether or not the party who commenced the proceedings in the country of the child's habitual residence was aware of the Hague Convention at the time (a feature much relied on by the mother) seems to me to be beside the point.
53. So far as the second submission is concerned, it is somewhat undermined by the concession made by Mr Hosford-Tanner that, if the Spanish court had been aware that the mother had started Hague Convention proceedings at the time of the hearing before it, and had come to its conclusion nonetheless, then Article 26 and Article 60 of Brussels II b would apply. In my view the question does not depend on any such distinction. At the time of the Spanish court proceedings, there were no proceedings afoot under the Hague Convention. It is therefore no surprise that the incidence and effect of the Convention were not considered. It is not for this court to review the substance of the Spanish courts decision. Nonetheless, as it seems to me, even had the court been aware of the fact that Hague Convention proceedings were open to the mother, since the very purpose of such proceedings would be that the custody issues then before the Spanish court should be resolved as expeditiously as possible in Spain, it is inconceivable that the matter would not have proceeded on the same basis and with the same outcome. That being so, the suggestion that, if an order for the return of the children is made, the Spanish court, having already ruled that there should be no appeal, might nonetheless consider there had been a material change of circumstances justifying reconsideration of its order, seems to me fanciful. I have been made aware of no material change in the circumstances of the children, or of the arrangements proposed for them, since the date of the Spanish hearing.
54. That being so, it becomes unnecessary for me to deal with the third defence advanced for the father, namely that, pursuant to Article 13(b) of the Hague Convention, there is a grave risk that to order the children to return would expose them to physical or psychological harm or otherwise place them in an intolerable situation. However, I will do so very shortly. It is conceded for the father that no case has been shown of exposure to substantial physical or psychological harm. It is simply said that the children would be placed in an intolerable situation by reason of the uncertainty and "shuttlecock" effect of ordering their return in a situation where the father could simply bring them straight back. It is said that the resultant interference with their education and wellbeing would amount to an intolerable situation. Suffice it to say that, bearing in mind the inherent likelihood of such disturbance in a large number of Hague Convention cases, and the high degree of intolerability required to be established, I do not consider that the father comes anywhere near to demonstrating that the requirements of Article 13 are satisfied.
55. Finally, I return briefly to my statement of surprise that it should be necessary to rely upon the provisions of Brussels II b in order to establish the case for non-return.
56. Article 1 of the Hague Convention provides:

"The objects of the present Convention are (a) to secure the prompt return of children wrongfully removed to or retained in any contracting state; and (b) to ensure that rights of custody and of access under the law of one contracting state are effectively respected in the other contracting states."

As I have already observed, this reflects an underlying belief that it is in the interests of children that parents or others should not abduct them from one jurisdiction to another, but that any decision relating to their custody is best decided in the jurisdiction in which they have hitherto been resident.

57. In the ordinary case, in order to achieve object (b) of Article 1, it is necessary to make an order to bring about object (a) i.e. the two objects operate in harmony. In the unusual circumstances of this case, namely where immediately following removal of the child, the mother commenced custody proceedings in Spain, the adverse result of which was determined before the hearing of her Hague Convention application, an order made in pursuit of object (a) would conflict with object (b). Common sense would suggest that it should not be necessary to resort to the provisions of Brussels II b in order to resolve this conflict, but to adopt instead an appropriate internal construction the of provisions of the Hague Convention in order to do so. That could readily be done, as it seems to me, were it not for the established Convention jurisprudence that removal and retention are mutually exclusive concepts, each being distinct events occurring on a specific occasion and that it is impossible for them to overlap or be treated as an ongoing process: see Re H, Re S (Minors) (Abduction: Custody Rights) [1991] 2 AC 476 at 498-499. Were it not for the rigid compartmentalisation of the two concepts, it might be feasible, and would certainly be desirable in a case of this kind, for the courts to treat the decision of the Spanish court as having intervened to validate or excuse what would otherwise be a wrongful removal and/ or retention when considered in terms of the Convention.
58. It was no doubt this difficulty which, in the light of her concession as to wrongful removal, led to Miss Meyer's reliance upon the provisions of Brussels II b as her necessary route to success. Despite the difficulties which obviously lie in the development of a Convention argument along the lines to which I have referred, I would not wish to close the door to such an argument if similar circumstances should arise in a case where the country of the child's habitual residence is a signatory of the Hague Convention but is not a member of the European Union.

Conclusion:

59. For the reasons I have given I refuse the mother's application for summary return of the two children to Spain.
60. I have before me a draft of the order proposed by Miss Meyer and which Mr Horsford-Tanner indicated was not controversial in the event that I accepted Miss Meyer's submissions.
61. It reads as follows:

"UPON the Court recognising the validity of the orders for Custody and Care of the two children awarded to the father and the visiting, stayover and communication arrangements granted to the mother by virtue of the decision of the Torremolinos Court of First Instance No.5 of the 9^th February 2006

AND UPON the Father agreeing

(1) To forthwith seek the withdrawal of the divorce proceedings commenced in Worcester County Court on the 2^nd February 2006 (case No WR06D014--)

(2) To forthwith seek the withdrawal of the residence proceedings commenced in the Worcester County Court on 30^th January 2006 (case No WR06P00067)

(3) Without prejudice to his ability to request the Spanish Court to transfer the proceedings relating to the children pursuant to Article 15 of the Council Regulation (EC) No2201/2003 (if appropriate) to participate fully and expeditiously in the proceedings already instituted in Spain in relation to Separation, Divorce and the arrangements for the two children until the divorce ruling is granted.

(4) To make the children available for contact with their Mother in accordance with the order of 09/02/06 providing that suitable agreement is reached between the parties about the Children being accompanied on any journeys to Spain and advance confirmation from the Mother of the dates and times for the contact and provision of her contribution to the travel costs as ordered therein and upon confirmation being given by the Mother that the children will be returned to his care at the end of the periods of contact until the making of any subsequent court order governing contact (whether in Spain or in England) or other arrangements as may be agreed between the parties themselves in writing.

(5) To notify the mother in advance of any proposed change of address or school for the children within the United Kingdom and to keep her notified of the address at which the children are living and the school they are attending and in any event not to permanently remove the children from England and Wales pending the conclusion of the divorce proceedings in Spain.

(6) And upon the Father indicating that it is his intention to register the decision of the Spanish Court relating to the two children for enforcement in England and Wales in accordance with article 28 of Council Regulation (EC) No 2201/2003 as soon as practicable."

IT IS HERBY ORDERED THAT

"1. The Mother's Application for summary return of the two children be dismissed

2. The tipstaff do release to the father the passports and travel documents for the children and for himself held by virtue of the orders of this court

3. The orders herein preventing the mother and father from removing the two children from the jurisdiction of England and Wales do stand discharged

4. The order herein preventing the father from changing the residential address of the minors do stand discharged

5. There be no orders as to costs herein save that there shall be a detailed assessment of the costs of both publicly funded parties."

62. I shall make an order in these terms subject to any changes which are agreed by counsel or made the subject of further application upon the handing down of this judgment.