Summary
The proceedings were in respect of two children.
The mother and the father were both English nationals, but they moved to Spain. Although the parties never married, they had two children who were both born in Spain.
The children had always lived in Spain, but on 12th March 2008 the mother and the children moved to England.
The father initiated proceedings in Spain, seeking guardianship, custody and access measures.
He also made an application for a summary return of the children to Spain.
The mother invoked the defence of Article 13b. The High Court had to determine a preliminary issue as to whether the father had custody for the purposes of Article 3 and 5 of the Hague Convention 1980. Sir Mark Potter, after considering the Spanish law, responded the question in affirmative.
The children were to be returned to Spain.
Sir Mark Potter held that:
“62 I am satisfied the Spanish court would hold that in any case such as the instant case, where (a) it is not in dispute either under the law of Spain or England that the paternity of the unmarried father has been established (b) it is clear that, at the time of the removal, the father was exercising PR/custody rights including his rights of parental control as recognised by Spanish law and (c) the effect of applying SCC Article 9.4 would be to deprive the child of the benefit and protection of those rights as at the time of the child's removal, such a result would be discriminatory as between the children of married and unmarried parents and it would be manifestly contrary to Spanish public policy as enshrined in Article 39.2 of the Spanish constitution.
63 If it be necessary to express that conclusion in terms of category (2) of the agreed text set out at paragraph 34 above, I do not consider that, in avoiding the application of English law, the Court would be applying the exception in respect of a foreign law which “ arbitrarily deprive(s) the father or mother of parental control and the right to relate to the child”. I do not consider that a system such as that in England, in which the rules are clear and whereby an unnamed father has an unfettered right to apply to the court for parental responsibility and contact if he decides to do so can be said to be arbitrary in effect. However, I do consider that the application of English law in this case would have the effect of attributing custody of the children to the mother alone without taking into account their welfare interests as recognised and protected by Spanish law.” [62-63]