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(Family Division; Charles J; 8 April 2008)
The family lived in Tenerife. The mother had two children by different fathers. The mother alleged that the father of the youngest child had threatened and assaulted her; the father had been acquitted in Spanish criminal proceedings. In the course of Spanish family proceedings the court made an interim order forbidding the father from communicating with the mother, and gave custody to the mother, stating, however, that parental authority was to be shared. Two days later the mother obtained an order ex parte allowing her to 'go to England' with the child, on the basis that she and the child would return for the trial. The mother obtained written consent from the father of the child's elder sibling, but did not inform the father of the child that she was leaving the jurisdiction. The mother and the two children moved to England and did not take any further part in the Spanish proceedings. The father of the child was unaware of the Hague Convention, and did not issue Hague proceedings for over a year.
There had been an abduction in breach of the father's rights of custody: the injunction preventing the father from communicating with the mother had not had the effect of suspending his rights of custody; and not only had the Spanish court not authorised the child's removal from Spain to make a home in England without the father's consent, the mother had been aware that his consent was required. The mother had not established that the child had become settled under Art 12, having failed to produce any evidence as to her state of mind as to the security of her position in England. The court ordered the return of the child on a date and subject to conditions set by the Spanish court. If settlement had been established, the court would still have ordered the child's return, on the basis that Spain was the best forum for the dispute between the parents.
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