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(Court of Appeal, Hallett, Black, Gloster LJJ, 15 August 2013)
The father appealed a decision to return his four children to Spain in proceedings under the Child Abduction and Custody Act 1985. The children were Spanish nationals but had lived as a family in the UK prior to the breakdown of the parents' relationship. The children, particularly the eldest objected to a return to Spain but the judge found their views were not determinative and after finding they were he was obliged to make a return order.
The appeal was allowed in part. The judge had failed to give sufficient weight to the fact that the whole of the eldest child's life had been spent in England with only a short interlude in Spain. Her objections were so robust that very considerable weight had to be given to them. The judge's decision in relation to her was reversed.
Returning the three siblings to Spain would separate them from their sister which raised the possibility that that course would place them in an intolerable situation. The appropriate course was to remit the matter to the Family Division for consideration.
The Red Book is the acknowledged authority on practice and procedure