Summary
The parties to the proceedings are both Spanish. They had been together for 18 years. Their child was born in 2004. The English court had to deal with an application for a summary return of the child to Spain. It should be noted that the parties came to live in England with their child on 15th August 2009. Originally, they came to England for a period of 2 years, but then they decided to stay for another period of 2 years. However, there was a breakdown of the parties’ relationship. They both went to Spain in July 2011, hoping there to agree as to where the child will live. However, no compromise was made. The father returned to England on 1st August 2011. The mother brought the child on 17th August 2011, expecting that she was collecting the child on 11th September 2011. On 26th August 2011, the father made an application to the English court, seeking to prevent the child’s return to Spain as well as to obtain a residence order. The hearing was on 12th September 2011. As a part of this process, the mother clearly stated that she intended to invoke the Hague Convention. An application for a summary return of child to Spain was made on 15th September 2011. The question was whether the Hague Convention could be applied at all in this case. The response was negative because it was determined that the child’s habitual residence was in England. As a result, the application for the child’s summary return to Spain was dismissed. Mr Justice Holman held:
“79 In my view, a conclusion that [the child] resumed his habitual residence in Spain in the period between 25 July 2011 (Miss Renton does not argue for any earlier date) and 17 August 2011 (upon which date he again became physically present in England) would indeed involve unilateral change by the mother and flies in the face of the realities of this case. In my view, his habitual residence in England persists to this day. But, even if that is not the case, I am not persuaded that on or before 26 August 2011 [the child] was habitually resident in Spain. It follows that the application under the Hague Convention must be dismissed.” [79]