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(Family Division; Ryder J; 11 September 2009)
The Algerian father and the Spanish mother had married and set up home in England; the couple had a child. When the child was about 11 months old, the mother failed to return from Spain at end of a holiday.
The father immediately issued Hague Convention proceedings for the child's summary return from Spain. In the meantime the mother issued divorce proceedings in Spain, which the Spanish court declined to hear, and the father issued Children Act proceedings in England. The mother intentionally avoided any participation in the English proceedings, repeatedly avoiding service; she effectively frustrated contact between the father and the child.
The Hague proceedings were making slow progress in Spain, apparently because of an allegation by the mother that the father was a 'fundamentalist', which allegation was investigated by the Spanish authorities until the Criminal Investigation Court dismissed it as 'not constituting any offence'. The final hearing in the Hague proceedings took place over 18 months after the proceedings were issued, and at the hearing the Spanish court refused summary return, apparently under Art 13(b), on the basis that the child was settled.
The father then sought an order for return from the English court, under Brussels II Revised, Art 11(7). The mother again evaded service and refused to participate in the proceedings. In pursuit of international judicial co-operation, the office of Thorpe LJ established communication with Spain's senior judicial representative, and there was reason to believe that help would be forthcoming.
At an interim hearing, notwithstanding the mother's non-attendance, the father sought an order for reasonable direct contact with the child, together with various orders in respect of parental responsibility and recitals to assist in the implementation of contact.
The English court retained jurisdiction to make the welfare order requested of it by the father. Until such time as that application was determined, jurisdiction was not ceded to the Spanish courts. The considerable delay since the father had last had contact would ordinarily be detrimental to the child's welfare and her relationship with the father. The fact of delay, which was not the fault of either the father or the child, did not render the English court's jurisdiction of only technical effect.
The Spanish court's refusal to order summary return to the jurisdiction of habitual residence was difficult to comprehend by reference to Hague Convention principles. The Spanish court appeared to have confused settlement with an Art 13(b) defence, and the Spanish court's stated reasons for finding an Art 13(b) defence fell far short of what would be required to establish such a defence in the English jurisdiction. The delay of over 18 months was inexplicable, having regard to the clear timetable set out in Brussels II Revised, Art 11(3) for such cases, and appeared to be a breach of the child and the father's human rights under European Convention on Human Rights, Art 8.
The father was entitled to invoke Art 11 of Brussels II Revised in England, and had used every known method to serve the mother and to try to engage her in the English proceedings. Given that there was no adverse information about the father available to the court, the court was likely to make an order for direct contact unless the mother began to engage with the legal process, and provided information about the welfare of the child. The court would adjourn proceedings for a brief period to give international judicial co-operation an opportunity to effect service on the mother and to facilitate an effective hearing before the English courts.
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