FD24P00616 - [2025] EWHC 985 (Fam)

I have found for the Mother on both consent and child objections. In those circumstances I can deal with the remaining defence under 13(b) reasonably concisely. The discretion not to order a return arises if the evidence establishes that:

“there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”

There is no dispute about the law I have to apply, namely that set out by the Supreme Court in In Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2011] 2 FLR 758. It is agreed that the onus of proof lies on the Mother and that the evidence must show a grave risk of the harm alleged to the child or that the child would find his or her situation intolerable on any return. Further it is agreed that;

I have to look at the proposed actual factual circumstances the Mother and children would face on a return in order to see whether this defence is established. I have to consider whether there would be a grave risk to the children or intolerability for the children, not for the Mother alone. However, I cannot ignore the fact that the children would be living with the Mother if they were to return and that her wellbeing and the children’s wellbeing are inextricably linked.

The Father has reported the Mother to the Spanish police for child abduction. On my findings, there was no such abduction because the Father consented to the removal but that decision will not bind the Spanish police or the Spanish courts. Thus, it seems inevitable that the Mother will face the stress of those criminal proceedings on a return even though, on my findings, the Father knows his police complaint to be without merit because he consented to the children going to live in England. It seems inevitable that the stress on the Mother of the ongoing criminal proceedings will have adverse consequences for the children as they will live in a household where the Mother faces the prospect of a prison sentence.

The Mother has nowhere to live in Spain as she gave up her accommodation when she left Spain in August 2024. She returns as a visitor and can lawfully stay in Spain up to 180 days. During that time she will have to apply for residency in order to be able to stay in Spain on a longer term basis. She says that, following Brexit, she never applied for official residency although that is disputed by the Father who says that she had the required permission to live and work in Spain. Both sides have submitted expert legal evidence about whether the Mother could obtain residency and the right to work in Spain. Neither side obtained permission for expert evidence and there is no indication that the lawyers who have provided the advice have the necessary wider levels of expertise to qualify as “experts”. Further, and neither statement contains the necessary declarations about impartiality. I am not prepared to attempt to evaluate this evidence because it is expert evidence where no permission has been given, and it is not in a form such that I consider I should take into account. As a result, I can only conclude that (a) there is significant risk that the Mother will not be able to work lawfully if she were return to Spain, (b) in practice she will be under a police investigation and be subject to examination in Spanish child arrangement proceedings and thus may well not be able to work “cash in hand” as she did before because that would not be consistent with the level of scrutiny she is under and (c) her permission to be in Spain will only be for 180 days and thus, after that time, she would be in the country unlawfully and may be required to leave the country.

Given there is a risk that she will be unable to work, there is equally a risk that the Mother would not be able to secure accommodation on a return. The Father has suggested that she could share a house with his sister. This is a different sister against whom allegations of mistreatment were made by the children but would nonetheless place the Mother and the children in a dependent situation because, as the Mother has explained, the Father’s family will support each other in relation to the allegations made by the children and so continuing contact between the children and those who they allege caused them harm may well be inevitable. The Father has offered to fund the Mother at a level of €250 per month but that would not be enough money for the Mother to rent a property and meet her and the children’s living costs. Thus, in practice, if I make a return order I accept that the Mother may have little choice apart from moving in with members of the Father’s family.

The Father has offered undertakings not to contact the Mother and not to seek contact with the children unless he obtains an order from the Spanish court. However, the Mother’s case is that the Father has a history of erratic behaviour as shown by his text messages. I accept that there is a real risk that, even if he has not obtained an order from the Spanish court, he will try to make contact with the Mother and the children and cause them distress. That risk will particularly arises if he knows where they are living and he could go to the house on the pretext of seeing his sister or another member of his family. EF has already made it clear that she is terrified of going back to Spain. I accept that it would be intolerable for her to be living in the house of a relative of her Father, who in all probability will believe that she is lying about the abuse she believes she suffered from the Father and other members of his family, and not knowing whether he will come to the house at any time. Given the evidence of the psychologist, I accept that this situation more than meets the threshold of intolerability.