PIL instrument(s)

Case number and/or case name

T & J (Children) (Abduction: Recognition of Foreign Judgment) [2006] EWHC 1472 (Fam)

Details of the court

England and Wales, First Instance

Articles referred to by the court

Date of the judgement

20 June 2006

Appeal history

CJEU's case law cited by the court

Summary

On 25th September 2005, without the mother’s consent, the father flew with the children to England. The mother applied for the return of her children to Spain. The relevant proceedings in England were initiated on 13th February 2006. The mother was Estonian; the father was British. They married in England, and subsequently moved to Spain. There was a break down in their relationship, and the parties decided to separate. Proceedings for temporary and prior measures had been commenced in Spain. The mother submitted that she had not been aware of the Hague Convention at time of the hearing in Spain. There was a Spanish order, dated 9th Feb 2006. The Spanish court gave a temporary order for the children to remain with their father. In this context, the recognition of the Spanish judgment was sought by the father. The English court recognised the Spanish order on the ground of Article 21(4) of Brussels IIa, and refused the mother’s application for the return of the children to Spain. It was stated that: “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.” [52]