[2025] EWHC 2219 (Fam)

[85] On the issue of immigration, the mother's case was that she and the children were not entitled to live in Spain … I do not agree with the judge that he was entitled to assume that 'the (Spanish) judicial system will be in a position to deal with that issue in any proceedings'. If the mother has no right to reside in Spain, it is not clear to me what proceedings these would be nor, indeed, what the mother's position would be pending the resolution of any such proceedings.

[86] Immigration status was not an issue which featured significantly in intra-Europe abduction cases prior to the UK's leaving the European Union. It is, however, a factor which is now much more likely to be relevant and, I would add, to require expert evidence. The latter is demonstrated by a recent unreported decision in which the judge adjourned the final hearing in order to get expert evidence on the mother's immigration status, as it happens, in Spain. This led to some delay but the evidence enabled the issue to be definitively determined, namely that the mother had rights of residence in Spain. It also emphasises the importance of this issue being raised at the outset of the proceedings so that the need for evidence can be addressed at that stage.

[87] I acknowledge that this issue was raised very late. However, there was an issue as to the mother's residence rights which was also relevant to her entitlement to State benefits, as was made clear by the information provided by the Spanish authorities for these proceedings. In cases where the taking parent is a national of the requesting State or has residence rights, I accept that the court would generally be entitled, absent evidence to the contrary, to assume that they will be able to access State benefits. However, this was not such a case.

[88] I should make clear that I do not accept Mr Turner's submission that this issue was sufficiently addressed on the basis that the mother would be entitled to enter Spain for 90 days and could make a relocation application. The former appears to have been accepted but, even if it is right (and it may not be because the general entitlement applies to visitors and not to someone in the mother's position) there is no information about how long relocation proceedings might take, so the court would still have to deal with the mother's and the children's situation on a return to Spain.

[89] In my view, in the circumstances of this case, the court needs to know what rights the mother and the children would have in Spain in order to address what risks might arise in the event of their returning there. Might this lead to the mother being unable to meet their basic needs? Might it lead to the separation of the mother and the children? It would seem to me that a court might well conclude that the enforced separation of the children from their primary carer in this manner would establish an Art 13(b) risk. As referred to above, without further information, I do not consider that, as submitted by Mr Turner, the latter risk would necessarily be ameliorated by the mother being able to make a relocation application to the Spanish court.