FD24P00616 - [2025] EWHC 985 (Fam)

This is an application by AB, (“the Father”) for the summary return to Spain of his two children, EF a girl aged 7, and GH, a boy aged 5. The Father brings the case against CD (“the Mother”).

The Father seeks an order pursuant to the Child Abduction and Custody Act 1985 which brought the Convention on the Civil Aspects of International Child Abduction which was signed at The Hague on 25th October 1980 (“the Convention”) into effect as part of UK domestic law. The Mother resists an order for return on the grounds that (a) the Father consented to the children moving to live in England with the Mother or acquiesced in their non-return, (b) the children object to a return, and (c) there would be a grave risk that any return to Spain would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation.

The purpose of the Convention is not primarily to make best interests decisions about where a child should live. As Lord Hughes said, when giving the majority judgment in In the matter of C (Children) [2018] UKSC 8 (“Re C”) at paragraph 3, that the purpose of the summary procedure “is to enable merits decisions as to the child’s future to be made in the correct State, rather than in the State to which the child has been wrongfully taken, or in which he/she has been wrongfully retained”. Thus, in effect, I have to decide whether welfare decisions in respect of these children should be made in the Courts in England or in Spain and also whether the children should live in England or Spain whilst those decisions are made.

The bundle in this case ran to 552 pages and further documents were added at the commencement of the hearing. Practice Direction 27A limits the size of ebundles to 350 pages and The President’s Guidance has emphasised that restrictions on the size of e-bundles remains in force. No reference was made in the hearing to a very large number of these documents. It is wholly unclear to me why a much smaller bundle could not have been prepared which focused on the real issues between the parties.

These are summary proceedings and the court is not in the position of making detailed findings of fact on all issues of dispute and that I should discern the facts primarily from the written materials. However, all parties agreed that I should hear live evidence on the issue of consent in line with the decision of the Court of Appeal in Re B (Children) (Abduction: Consent: Oral Evidence) (Article 13(B)) [2022] EWCA Civ 117, but neither counsel submitted that live evidence was required on any other issue. I agreed to that course although I expressed some surprise that, given the Father’s case that the abuse claims made against the Father by the children had arisen as a result of coaching from the Mother, counsel for the Father did not wish to ask any questions of the CAFCASS officer. I will return to that issue later in this judgment.

The history of the relationship and the series of events which led up to the mother and the children leaving Spain to come to live in England were set out in witness statements from the mother and the father. Although there were some areas where they agreed on a common history, there were many areas of dispute. Save as set out below, I do not need to resolve the large number of disputes between the Mother and the Father in this judgment.