Date: Tue 19 Feb 2019

Venters Successfully defend application for child’s return to Spain

Re E (Abduction: Article 13B Deferred Return Order)

In the case of Re E (Abduction: Article 13B Deferred Return Order) Venters successfully acted for the Respondent Mother and defended an application made by the mother’s former partner for the return of the parties’ daughter to Spain, it being alleged that she had been wrongfully removed to England. This was a factually and legally complex case, there were very serious allegations made by the mother and father against each other.

The family had been living in England and had moved to Spain in 2016. There were criminal proceedings against the mother in Spain which were still ongoing when she returned to England with the child in 2018. The father issued an application under the 1980 Hague Convention for the child’s summary return to Spain. The mother opposed this on the basis that the child was not habitually resident in Spain immediately prior to the removal. She also argued that in any event, an Article 13(b) exception was engaged as it was put forward that the child was at grave risk of physical or psychological harm or would otherwise be placed in an intolerable situation if an Order for her return to Spain was made.

The mother was arrested under a European Arrest Warrant for the outstanding Spanish criminal proceedings and extradition proceedings were commenced. This resulted in the child being placed in Local Authority foster care and she remained there for the rest of the proceedings. The Local Authority issued care proceedings and these were stayed and the child remained in foster care under s.5 of the Child Abduction and Custody Act 1985.

The child was appointed with a CAFCASS Guardian who supported the mother’s Article 13(b) defence.

Given that child abduction proceedings are summary, psychological testing would seldom be ordered during the course of proceedings of this nature. However given the very unusual aspects of this particular case and the fact that the father continued to seek contact with the child under s.5 of the Child Abduction and Custody Act 1985, the Court ordered a psychological assessment of the child. The child’s presentation and functioning were of concern to the psychologist but improvement had been seen in this over time and while remaining in foster care. The psychologist recommended play therapy, stability and no material changes in the child’s life.

At the final hearing the father conceded that on the evidence, the test for an article 13(b) defence was made out but he put forward that this could be ameliorated by there being a delayed return to allow the child to be re-introduced to him or that there could be a stayed or deferred return to allow a reintroduction and assessments that are more commonly commissioned in care proceedings.

Mrs Justice Knowles provided helpful summaries of the law on habitual residence and Article 13(b) in her Judgment. She concluded that whilst it was finely balanced, the child was habitually resident in Spain immediately before her return to Spain as she did have some degree of integration in social and family life in Spain but she concluded that the Article 13(b) defence was made out and she exercised her discretion to decline to Order the child’s return to Spain. The stay on the care proceedings were lifted.

The full Judgment can be accessed here

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