This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Mr David Lock KC:
- 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.
The Mother's account of events up to 12 August 2024.
- The Mother's first witness statement explained that she had met the Father in a city in Southern Spain in 2015 when she had moved to Spain from England to work as a language assistant on a graduate programme. She says that she was never planning on staying there and wanted to move to Madrid as she had secured a job as an au pair there. However, the relationship developed and she never went to Madrid but instead stayed working in that area. The couple moved in together in January 2016 but they never married. They first moved to a rented flat and then a few months later they moved to a house that the Father then bought.
- In September 2016, she says that she found out that she was pregnant and that their daughter, EF, was born on 19 April 2017. She said that, after she became pregnant, the Father's temperament changed and he became short-tempered and would fly off the handle for no apparent reason.
- The Mother's case is that the Father had a longstanding cocaine habit and would use cannabis on a daily basis. At that time, the Father was working long hours in a bar owned by his father. The Mother said the bar had a bad reputation for drugs and fighting. She says she believed that he was taking drugs in order to stay awake and get through his shifts. When he would come home, she says he would find it difficult to sleep so he would smoke cannabis to relax. She also alleged that the Father was growing cannabis and selling it commercially.
- She says that she experienced domestic violence from the Father and that she "became compliant and scared of him". The Mother's evidence is that the Father continued to behave in this way after EF was born. She said:
"I never wanted to argue in front of EF but sometimes it was inevitable when AB would come back in a bad mood and start screaming and shouting at me for no reason. Sometimes when he was drunk, he would purposely wake up EF in the night so that I could not get any sleep by being loud, singing, laughing and trying to get her to be awake so that I had to see to her and so that I couldn't sleep. He would always accuse me of being unfaithful and I used to tell him that I would never cheat on him and that he was being paranoid. He would have none of it and would insist on going through my phone. AB was adamant that I must be having sex with other people at the beach club. Even calling numerous colleagues to confront them, to which they obviously denied and even told him he was 'crazy'"
- The Mother describes a cycle of verbal abuse followed by remorse by the Father, and then a period of quiet followed by another drug-fuelled period of abuse and threats of violence against the Mother. One of the agreed areas of contention between the Mother and the Father concerned sexual intercourse. The Mother complains in her statement that, in summary, the Father had a far higher expectation of sexual intercourse than she wanted and that, whenever she did not want to have sex with him, the Father got angry and abused her. I note that the Father's view was that the Mother had a problem with sex which she needed to solve and he suggested that this was a medical or psychological problem she needed to address. It appears common ground that differences in sexual expectations were a source of considerable tension between the Mother and the Father throughout the period of their relationship.
- The Mother's case is that following GH being born, the threats and aggression from the Father got even worse. She said:
"If I refused to have sex with him, he threatened that he would take me to the mountains and beat me to death. He told me that he would leave me there and that no one would care and/or be suspicious because I had no friends or family in Spain. He would say things such as he was going to kill me and then use the time in prison to get an education, get the children when he got out of prison and be happy. I remember on one occasion be smashed my mobile phone so that I could not call anyone"
- The Mother has exhibited a number of text messages she sent to her mother complaining about the Father's conduct and setting out her concerns that he was taking cocaine. Those messages also suggested that the Father said at times that he did not want to have the children and refers to threats made by the Father.
- These difficulties led to the Mother moving out of the Father's house with the children at about the time of New Years Eve at the end of 2019. However it appears the relationship was on and off and she explained that, in March 2020, she moved back in with the Father as Spain went into lockdown due to the Covid pandemic. She says the Father persuaded her to come back to live with him and promised he was "going to get clean and was going to stop with the cocaine and the cannabis". She also says she was concerned she would not be able to survive lockdown alone, with no friends or family to help. She said things were OK for a few months but then the Father's drinking and drug taking started again. Her case is that she moved back and forth on a series of occasions, hoping each time that the Father's behaviour would match his promises but finding that this was not the case.
- It appears that, although the couple had largely separated by late 2020, in December 2020 they travelled to England to visit the Mother's family for a 2 week holiday. On the way back the Father got drunk on the plane. The Mother says he was abusive to her and others and was arrested when he arrived back in Spain. Whilst the exact circumstances of this incident are in dispute, the documentation suggests that the Father was convicted of assaulting one or more security guards and was sentenced to 6 months imprisonment.
- Although relations between the couple were strained, between 2021 and 2024 the Mother continued to live in Spain with the children separately from the Father but the children spent a considerable amount of time in the house occupied by the Father, his Mother and various members of his family. Nothing was ever formally agreed but a pattern of regular contact arrangements developed between them. In general, the children appear to have spent one week with the Mother and then spend some alternate weeks at the Father's house. The Mother states that she did not have any particular concerns about the Father or members of his family posing a risk to the children and took reassurance from the fact that the Father was living with his Mother who was providing part of the care for the children in the weeks when they were with the Father. She said:
"I was really worried that AB would go to the Court and have the children taken from me. Which was something that he threatened often. I did speak to a lawyer over there who said that it was highly likely that if one of us went to Court, AB would get one week off and one week on with the children. I therefore felt that I had no option but to agree for him to have them six days in a row with me having them eight days in a row. He has friends and family members who are lawyers, I did not know any lawyers nor would I have been able to afford one"
- The Mother's case is that the Father oscillated between wanting to be a good and involved Father to the children and wanting to pursue a new life as a single man without having the responsibilities of looking after the children. She says that he often spoke of the possibility of the Mother moving to live with the children in England and, at times, encouraged her to do so. She describes him being at best ambivalent about having the role as a parent and feeling that, if they moved to England, he would get his freedom back as a single man. She says that he suggested this between 20 and 30 times prior to August 2024.
- She explained that things came to a head when the Father sent her a voice message cancelling a birthday party for GH which had been due to be held at his house on 12 August 2024. It was a long message full of expletives and the following gives a sense of the tone:
"You have 10 more days and I'm sorry, I don't want this fucking birthday in my house. I don't want these people in my house. I don't want nobody that they don't want, the same that you do it because you can just change the plan, make it in your house if you wanna"
- The overall message was clear, namely that the Father was upset and part of his response was that he was not prepared to have the child's party in his house. The Mother said she responded to this message by going to his house on Sunday 4th August to discuss things. She said:
"… the house was a complete mess. I was shocked. I had never seen the house in such a squalid condition. I found AB sat at the kitchen table crying. He admitted to me that he had been taking cocaine whilst caring for the children and that he cannot stand this situation anymore. He says that he did not want to be cruel, but it would be best for everyone if we moved to England where I have family support and can find a job and also get some support from the government, something that is not possible for me to get in Spain. ….
I comforted AB by telling him that I will make sure he still has a relationship with the children when we moved to England and that this will allow him to find his own happiness. We both mentioned that this distance and time apart will benefit us both as I had also been struggling with memories of the past and what AB had done to me during the time we were together which included emotional and physical abuse"
- She also says that, as part of this discussion, he changed his mind about the party and agreed to have it at his house on 12 August.
- The Mother was in the habit of coming to England with the children to visit her mother and step-father about 3 times a year, although she made fewer trips during the covid pandemic. She was due to leave for England on 14 August and her case is that this pre-planned trip was then agreed between them for her to move to England with the children. In the days before 14 August she says that she arranged to give up the tenancy of her flat and gave her car to a friend to sell. She says that some of the children's things were taken to the Father's house so that the children would have a welcoming environment when they visited.
- The party went ahead on 12 August and the Mother explained how some people knew she was leaving but others did not and she was cautious about who she told because, in summary, the Father wanted to control how the information got out. That is, so she explained, why she wrongly told a friend of the Father's called Joanna that she would be back in 2 weeks when she knew that, in fact, she would be staying in England for far longer.
- The Mother bought one-way flights to England and travelled with the children to East Midlands on 12 August. She thus says that she moved to England with the Father's consent.
The Father's account of events up to 12 August 2024.
- The Father gives a very different account of events in the period running up to 12 August 2024. The Father said:
"In relation to the picture the Respondent seeks to paint of our relationship in Spain, it is just a complete fiction and bears no resemblance to the reality and my own experience of our relationship. I accept that we argued at times during the relationship and ended up separating, but we then were able to co-parent the children together and I felt that this was working well before the Respondent took the children to England on holiday and decided to retain them there"
- The Father also says that he is not an alcoholic as the Mother claims and does not take cocaine or have a cocaine habit. He says that he has never grown or sold cannabis, but he accepts that he used to smoke cannabis occasionally but says that he does not do this anymore. He says that he takes CBD sometimes to help him sleep but explains that this is legal in Spain and he can buy it online. The Father denies all of the allegations of abuse made by the Mother and suggested that the relationship broke down initially because the Mother had had an affair with someone but that he had been trying to mend the relationship with the Mother ever since.
- One of the key features of this case is that the Father remains keen to redevelop his relationship with the Mother and, in giving oral evidence, he made it clear that part of the reason he wanted the Mother to return to live in Spain with the children was that he wanted to restore his romantic and sexual relationship with the Mother. In contrast, the Mother is adamant that she does not want to resume the relationship but this is something that the Father does not appear to me to be prepared to accept.
- The Father accepted that he had sent the message cancelling the party and accepted that he had later changed his mind about this. He said that he only sent the message because the Mother was trying to invite too many people to the party and he wanted it moved to another location because it was growing too large to be able to take place in his house. However, there is no reference in the voicenote to the Father having concerns because too many people had been invited and that explanation does not appear to me to be consistent with the vituperative nature of the message. The Father says that he does not recall any meeting on 4 August and gave no clear evidence about how he came to change his mind about the party, save that he suggests that the Mother had reduced the number of people who were invited and so he was content for the party to go ahead at his house. He strongly denies that there was any conversation on 4 August about the children going to live in England and says that this is not something he ever agreed.
- The Father's evidence about whether he ever suggested that the Mother should go to live with the children in England was somewhat equivocal. He accepted that he had said to the Mother on occasions that she should go to live in England. He claimed that he never meant these comments to refer to the children and suggest they were only said then he was frustrated or angry and were never meant seriously. He said that he only said this on occasion to the Mother prior to August 2024 to "try and get a reaction and test her love for me".
The evidence relating to events that happened after 12 August.
- Once the Mother and the children came to England on 14 August 2024, there was some initial communication between the Father and the Mother. The Father sent a message saying "E.joy the holidays". I accept that that message was equivocal because it could be a reference to holidays in England, and so it could suggest the Father was expecting the Mother to return to Spain after a holiday in England. Equally, it could be a reference to the Mother and children enjoying the school holidays before EF started school.
- Whilst the Mother was in England, the messages show that the Mother told the Father that she was looking for a property in England. He did not ask why she was doing that or appear to have a problem with the mother seeking to find a property in England during what was, on his case, only supposed to have been a 2 week holiday. The Mother's explanation is that she was looking for a property to live in with the children. The Father gave an explanation after he had seen the text messages and the mother had highlighted this in her witness statement. He said that the Mother had told him that she would be looking for a property to rent so that she could get the rent paid by the government, and then she was intending to rent out the property to tenants and hence generate some income for herself after her return to Spain. He said that doing this was the Mother's idea and that he was not party to the scheme but he said that sorting out a rental property was something she intended to do during the 2 week stay in England. There was thus a complete conflict of evidence about the reason that the Mother was looking for a property when she came to England in August 2024.
- The Mother's evidence is that, on about 21th August, she became concerned because the children had told her that they did not want to see the Father again and she was troubled by that. There was a long call between them on that day. What then happened, according to the Mother, is that the children started to disclose to her that they had been subject to abuse from the Father and members of his family when they had been in the Father's care in Spain.
- The initial disclosure was that the Father was mean to them when they were at his house, but the children said that "XX and YY were worse". That is a reference to the Father's sister and mother. Her case is that the children slowly came out with more things such as that AB's female relative would hit them with a belt and that another relative had strangled EF and also thrown them both in the pool with their clothes on as punishment. She says that they said they were made to eat off of the floor, that their father would scream and shout at them and that he would hit them hard. She said that GH says that his father regularly slapped and hit him in the face whilst he was in his care, pushed him to the floor, locked him in a dark bathroom and made him take cold showers. He also says that his father would break his toys frequently, being most upset about a brand-new car that he had received for his birthday. She said that GH also disclosed that his paternal grandmother and paternal aunt had also slapped him and hit him with things.
- The Mother said that EF disclosed that her father regularly slapped her in the face, one time hitting her hard enough that she got a bruised eye. She says that EF told her that the Father would make her eat food off the floor as a form of punishment. She says that when she would wet the bed, she would be made to sleep on a towel in a separate baby bed instead of being provided with night pants, which she said the Father said were a waste of money and that she should not need them. The mother's evidence is that EF said she would wake up soaked sometimes, at which point her father would make her take a cold shower, sometimes even calling her 'smelly' or 'wee wee face' and laughing at her.
- The Mother's evidence is that she was shocked at these disclosures and she told the Father what the children were saying during the last part of August. The Father accepts that the Mother told him what she said the children were saying during phone calls at this time and says he was equally shocked. His position is that he completely denies that any of these matters were true. It is, however, of some importance for me to record the way that the Father reacted to the Mother's allegations. He responded to these disclosures in a series of voicemail messages over the next month which are quite extraordinary in tone. In summary, in these messages he insulted the children, blamed the children for making up lies and threatened them with violence for having done so. I have transcripts of the messages and it is not necessary to set out all of the messages in this judgment however his messages included the following:
"As I said very clearly before, I'm not setting foot in England. My kids live in Spain and I'm Spanish. Going to England terrifies me…I'll never set foot in England…never. But if this is what you're telling me now when this is where the kids should be, well [the Mother] you're gonna have no choice but to come here now and that's it because I told you that I wanna talk to them face to face and after I've spoken to them face to face and the kids tell me what they said there, then you can automatically take them with you because I don't want them with me"
"Yeah, it's a big problem. Now it's in your hands if you want to just take this for you alone or not and depend what you want to do it I will be there or not because really now I'm feeling fed up and tired and [start of translation] I don't feel like it right now, seriously…I'd almost rather just forget about them, I've had enough…you change your mind, of course you change your mind…if you hadn't accused me of that shit…while you go and lumber me with these kids who I gave everything I had to. Everything, everything…I raised them as best as I could. I gave them affection, I bought them the stuff they wanted, I spent my time on them. I took them all around the fucking city just for them to behave like that! Fucking shitface kids! Shit fucking kids! Ass-wipes, they're ass-wipes! Seriously man, I reckon they're not mine. Seriously, they disgust me!"
"Look, it makes me so angry to hear that. That girl's got a serious problem, but apart from that, she's making me despise her, seriously, I'm telling you. That girl's a compulsive liar, either that or according to her, everyone else lies to her. Everyone, we're all lying, right? You can think what you like, I don't care about that, but you'll regret it sooner or later. That girl´s got a serious problem. That girl's got a SERIOUS problem, a serious serious problem"
"And it's more. If I see they hitting each other, I will call the cops. I will call the cops and say I'm sorry, I will call the cops, and say she hit he and I want to punch and if she he do the same. I don't care that they are childs. They now be like adults no they do that they do [unintelligible]. I promise you that all that they do bad, they going to know all that they do bad because if have to fight my proper childs, like my father do with me, I go to do it, I don't care"
- In my judgment, it is not the least bit surprising to me that the Mother's attitude towards the Father has hardened as a result of those messages. However, I note that the Father's reaction at this time was very largely to blame the children for making up lies about what had happened during their time with him. At this stage he did not primarily appear to be saying that the children were saying these things because the Mother had persuaded them to tell lies about what had happened whilst the children were in his care.
- The Mother has not rented a property for herself and the children. Instead, she has continued to live in her mother and step-father's house and explains that, perhaps to everyone's surprise, that arrangement is working well. The children have started at schools here and appear now to be settled and, as explained below, have had support from professionals arising out of their disclosures arising out of alleged abuse from the Father and members of his family. The Father has had very limited electronic contact with the children since they arrived in England in August 2024.
- The Father approached the Spanish authorities who, in turn, instructed lawyers in England who issued these proceedings on 11 December 2024. I accept that he acted as promptly as he could have done in seeking a return order. The Mother defends these proceedings on multiple grounds as indicated above.
The Mother's defence based on alleged consent.
- The foundation of the Hague Convention is to provide a framework for the courts to decide which court should make welfare decisions about children who had been abducted from one jurisdiction to another in breach of the parental rights of the left behind parent in the state in which the children were habitually resident. In this case, despite the fact the parents never married, it is common ground that both the Father and the Mother had parental rights in relation to these children in Spain. Accordingly, if the Mother had removed the children from Spain without the Father's consent, it is agreed that that would be a breach of the Father's parental rights and thus engage the Convention. Conversely, it is common ground that, if the Mother and the Father had orally agreed a plan whereby the Mother was to move to live in England with the children, the Mother would not have acted in breach of the Father's parental rights in carrying out the plan. It might have been different if the law of the state from which the children were removed required formalities before a parent's consent could be legally effective, such as being set out in a written agreement signed by both parents. There is no suggestion that there is any such requirement in Spanish law and thus I am invited to assume that oral consent by one parent is sufficient under Spanish law. Thus, if the Mother and Father had agreed this plan, the Father accepts that the Mother's removal of the children from Spain was not "wrongful" for the purposes of Article 3 of the Convention.
- However, even if the Father had originally agreed to a removal plan, it is agreed that the Father is entitled later to change his mind and then assert that he was withdrawing his consent to the children living in England and wanted them to return to Spain, as Wilson J (as he then was) explained in In re D (Abduction: Discretionary Return) [2000] 1 FLR 24 ) at page 36.
- It appears to me that the Father is entitled to take this position because, in the early days after a consensual removal, the children will remain habitually resident in Spain. Habitual residence is a matter of fact and, in very broad summary, a new habitual residence is only acquired after the child has become sufficiently integrated into their new environment: see re B (A Child) (Custody Rights: Habitual Residence) [2016] 4 WLR 156 as clarified in In re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) [2020] 4 WLR 137. Thus, it seems to me that the law is that a left-behind parent who has consented to the removal of a child with a travelling parent is nonetheless entitled to change his or her mind and to assert that the continuing retention of the child in the new state is wrongful up to the point when the child acquires a new habitual residence in the new state. It follows that, even if the Mother proves that her removal of these two children to England was not wrongful (in the sense that she did so with consent), the Father is nonetheless entitled to assert that retaining the children in England is wrongful and thus rely on the terms of the Convention to seek a return order. It is common ground that I am not obliged to make a Return Order in such a case, but have a discretion whether to make a return order or not.
- The law on the evidence needed prove consent was not in dispute between the parties. It was accepted that the leading cases are Re P-J (children) [2009] EWCA 588 and Re G (Abduction: Consent/Discretion) [2021] EWCA Civ 139. In the latter case Peter Jackson LJ said:
"24. Consent is an exception that is infrequently pleaded and still less frequently proved. The applicable principles were considered by this court in Re P-J (Children) (Abduction: Consent) [2009] EWCA Civ 588 [2010] 1 WLR 1237, drawing on the decisions in Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR. 174 (Wall J); In Re C (Abduction: Consent) [1996] 1 FLR 414 (Holman J); In Re K (Abduction: Consent) [1997] 2 FLR 212 (Hale J); and Re L (Abduction: Future Consent) [2007] EWHC 2181 (Fam); [2008] 1 FLR 914 (Bodey J). Other decisions of note are C v H (Abduction: Consent) [2009] EWHC 2660 (Fam); [2010] 1 FLR 225 (Munby J); and A v T [2011] EWHC 3882 (Fam); [2012] 2 FLR 1333 (Baker J).
25. The position can be summarised in this way:
(1) The removing parent must prove consent to the civil standard. The inquiry is fact specific and the ultimate question is: had the remaining parent clearly and unequivocally consented to the removal?
(2) The presence or absence of consent must be viewed in the context of the common-sense realities of family life and family breakdown, and not in the context of the law of contract. The court will focus on the reality of the family's situation and consider all the circumstances in making its assessment. A primary focus is likely to be on the words and actions of the remaining parent. The words and actions of the removing parent may also be a significant indicator of whether that parent genuinely believed that consent had been given, and consequently an indicator of whether consent had in fact been given.
(3) Consent must be clear and unequivocal but it does not have to be given in writing or in any particular terms. It may be manifested by words and/or inferred from conduct.
(4) A person may consent with the gravest reservations, but that does not render the consent invalid if the evidence is otherwise sufficient to establish it.
(5) Consent must be real in the sense that it relates to a removal in circumstances that are broadly within the contemplation of both parties.
(6) Consent that would not have been given but for some material deception or misrepresentation on the part of the removing parent will not be valid.
(7) Consent must be given before removal. Advance consent may be given to removal at some future but unspecified time or upon the happening of an event that can be objectively verified by both parties. To be valid, such consent must still be operative at the time of the removal.
(8) Consent can be withdrawn at any time before the actual removal. The question will be whether, in the light of the words and/or conduct of the remaining parent, the previous consent remained operative or not.
(9) The giving or withdrawing of consent by a remaining parent must have been made known by words and/or conduct to the removing parent. A consent or withdrawal of consent of which a removing parent is unaware cannot be effective.
- When making submissions, Ms Georges for the Father initially submitted that there was "zero evidence" to support the mother's case on consent and that it was not open to me on the evidence in this case to decide that there had been consent. That was an ambitious submission which appeared to be based on the proposition that the need for "clear and unequivocal" evidence meant that it would be wrong in principle for the court to make a decision on the Mother's evidence alone without any supporting or corroborating evidence. I do not accept that submission. It seems to me that the Mother is perfectly entitled to give evidence of conversations to which she says she was a party and to invite the Court to accept that evidence. She is entitled to do that even if the other party to the conversation disagrees about what was said.
- In this case I have heard evidence from both sides as to whether there was a meeting between the Mother and the Father on about 4 August and, if there was a meeting, what was said at that meeting. When pressed, Ms Georges reluctantly accepted that, if I were accept the Mother's account of what was said at the meeting, her account of events constituted evidence and, if I accept that evidence, the Father's consent to the removal on 14 August would be proven. However, she urged me not to accept that evidence because (a) she submitted I should prefer the Father's evidence over the Mother's evidence on those events and (b) I should not accept it due to the absence of any corroborating evidence. Her main case was that it was inherently unlikely that the Father would have agreed for the Mother to relocate to England with his children because he is devoted to his children and it is unlikely that he would not have agreed to something that would prevent him seeing his children on a weekly basis.
- I have had the benefit of hearing both the Mother and the Father give evidence on the issue of consent. The Mother was a nervous witness who gave her evidence well and, so it seemed to me, was generally trying to be honest with the court. She was prepared to accept criticism of her where her behaviour was less than perfect, such as working "cash in hand" for jobs in Spain. I was also satisfied that she was telling the truth when she explained that she was having serious problems in her relationship with the Father but nonetheless that, despite the problems between them, she sought to ensure the children could maintain a relationship with both parents, and so co-operated with the children spending time with the Father despite all the difficulties with his behaviour. In contrast, even taking full account of the difficulties of giving evidence through a translator, the Father's evidence was far less impressive. He was an evasive witness who gave long, rambling answers which, on occasion, did not address the questions that he had been asked. The Father appeared to me to have little if any insight into the extent to which his messages indicated an attitude to the children which, in my judgment, even assuming the children had said things he believed to be untrue, was wholly unjustified. He also did not have any real explanation as to why the Mother had sent despairing messages to her mother over an extended period about his behaviour, including his cocaine use, when he suggested that he had never done anything to justify her concerns and never took cocaine. However I am mindful that the fact that the Father may not have been truthful about one or more aspects of his evidence should not lead me to conclude that he is not telling the truth about other aspects of his case.
- I have carefully considered the factors urged on me by Ms Georges for the Father (as summarised at paragraph 19 of her helpful Skeleton Argument) to support her case that the Father never gave consent. In any complex factual situation where emotions are high and the issue is what has been agreed orally between two people, there will always be factors that can be relied upon to support one case or another. However, if I were to accept that the Father blew hot and cold about accepting the responsibilities of being a parent, it seems to me that none of the factors relied upon by Ms Georges point strongly in the direction of the Father not having agreed to the relocation.
- I consider that the Mother's evidence as to what happened on 4 August when she says the Mother and the Father discussed her moving to England with the children is more likely to be correct for the following reasons:
a. Having heard her and the Father give evidence in these proceedings, for the reasons set out above it seems to me that it was more likely that her evidence about what happened on 4 August was reliable;
b. It is clear that the problems with the relationship were long standing and that, whilst the Father wanted to restore his relationship with the Mother, he was keen for there to be a full and regular sexual relationship between them, but that the Mother did not feel that she could offer this. The Father saw this as a major problem between them and even suggested that the Mother sought medical assistance to try to work out what, as he saw it, was the "problem". It seems to me that it is far more likely that this sexual incompatibility was a result of the different responses of the Mother and the Father to the serious underlying problems in their relationship. However, it is clear that the father's desire to resume a full sexual relationship with the Mother was a long-standing problem between the parties and was part of the considerable tensions between them. The Mother's text messages to her mother suggested that the Father's state of mind swung between times when he wanted to be an active father to the children despite the problems in his relationship with the Mother and times when he wanted to separate himself entirely from them so he could pursue a new life as a single person, free from the responsibilities of parenting the children and living a carefree and possibly hedonistic lifestyle. That swinging emotional state is shown up in the messages the Mother sent to her mother long before the events of 4 August 2024, but shows that, when the Father was dissatisfied with life, he may well have had a mindset of supporting the Mother taking the children to England and thereby acquiring greater freedom for himself to pursue his life as a single man as he thought fit. I thus consider that the overall picture of the relationship shown by the contents of his messages and her text messages is consistent with the Father oscillating between wanted to play a full part in the lives of the children and wanting his freedom without the constraints of the responsibilities that caring for the children imposed on him. I thus consider that the type of conversation which the Mother described on 4 August is consistent with the wider picture of the relationship;
c. The Mother describes the Father as having been in an emotionally low state when she saw him on 4 August. That seems to me to be consistent with the contents of the message that the Father sent cancelling the party. The suggestion from the Father that his only concern about the party was that the Mother had invited too many people is not consistent with the contents of that message but it is consistent with the way that the Mother described his mood;
d. I place some reliance on the evidence about the property. Having heard the witnesses, it seems to me highly unlikely that the Mother had been trying to rent a house and then commit a fraud on the UK Housing Benefit authorities as the Father has suggested. Aside from the question as to whether the Mother was the type of person who would commit this type of serious criminal offence, it seems utterly impractical to suggest that she could have found a property, secured a tenancy, sorted out housing benefit, sourced tenants and completed everything within a 2 week period. I accept that she had worked "cash in hand" in jobs in Spain but the suggested conduct would involve criminality of a much higher order. I also find it near to incredible that it never occurred to the Father that this type of scheme involved illegality. Whilst I accept that the Father could not be expected to have a detailed understanding of UK Housing Benefit law, I cannot accept that anyone who knew about such a scheme could reach any conclusion other than that this scheme would be plainly unlawful; and
e. When the Mother had got to England and the Father started to send messages saying he wanted the Mother to come back to Spain with the children, the Mother's response was to say repeatedly that the Father had told her to go to live with the children in England. The Father's response to these messages was in voicemail messages rather than by text messages but the overall tenor of those messages did not deny his previous comments. His response overall was to accept that he may have said that she should live in England but to suggest that it was only said in the heat of the moment or to test the Mother and she should have realised that he never meant it. Having heard both give evidence, those responses seem to me to suggest that is far more likely that the Father did say to the Mother than she should live with the children in England but that he now regretted agreeing to this plan.
- I thus accept that the Mother's evidence establishes that it is more likely than not that the Mother and the Father met on about 4 August and discussed a plan under which the Mother would take the children to live with her in England, and that she would ensure that the children visited Spain regularly so as to maintain contact with the Father. I also accept that, notwithstanding the Father's emotional state at that informal meeting, any decision reached at that meeting was "clear and unequivocal". It appears clear that the Father's mood improved in the 10 days between that meeting and the date of departure and that the party for GH on 12 August went ahead without any problems. Given that, as I have found, the Father knew that the plan was for the children to go to live with the Mother in England from 14 August, he must have reflected on that decision in the period between 4 August and 14 August. There is no suggestion from either the Father or the Mother that, as his mood stabilised and he came to terms with what was going to happen, he changed his mind and said to the Mother that he did not want her to move on a long term basis to England with the children. He had, in effect, a 10 day "cooling off" period when he must have known that the Mother was pressing ahead with her plans for this permanent move and the evidence suggests that he did not change his mind about the agreed relocation or withdraw his consent. That evidence, taken as a whole, leads me to the conclusion that his decision to give consent was clear and unequivocal.
- I thus conclude that the removal of the children from Spain to England was not wrongful within the terms of the Convention. In those circumstances I do not need to deal with the Mother's alternative case based on acquiescence. Notwithstanding my conclusion on the consent issue, I accept that by 28 August 2024 the Father had learned of the allegations that the children were making against him and members of his family and that he withdrew the consent that he had given for the children to remain in England. At that point it seems to me that the children had not yet become habitually resident in England and thus they continued to be habitually resident in Spain. There does not appear to be any concept of estoppel in family law and thus there was nothing to prevent the Father from changing his mind and withdrawing his consent to the children changing their place of habitual residence.
- The approach the court should take where a parent initially gives consent to a removal and later changes their mind and demands return was examined by Peter Jackson LJ in his judgment in In re G (Children) [2021] Fam 239. The Juge noted that in C v H [2020] 1 FLR 225 Munby J had said at para 46 "I am inclined to think that it will be an unusual case in which consent having been established, it is nonetheless appropriate to order a return". Having examined the cases, the Peter Jackson LJ said at para 42:
"In a consent case, the better view is that the weight to be given to the policy considerations of counteracting wrongful removal and deterring abduction may be relatively slight, while the weight to be attached to home-based decision-making and comity will depend critically on the facts of the case and the view that the court takes of the effect of a summary return on the child's welfare"
- However, in order to undertake that exercise, it is necessary to consider further the facts of this case which can helpfully considered around the child objections and article 13(b) intolerability defences.
The Mother's case on child objections.
- Article 13(b) of the Convention provides:
"The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views"
- It is common ground that the question as to whether the child objects is a question of fact which I have to reach based on the evidence before me and that the discretion only arises if I am satisfied that the evidence shows that a child objects. I am mindful that the "objection" voiced by the child must be to returning to Spain and not returning to living in a particular part of Spain or to resuming living with the Father. Further, an objection is something stronger than a preference. It must be a settled state of mind where a child of sufficient age and maturity to know their own mind develops and communicates a strong view that they do not want to return to live in a country in which they previously lived.
- In this case there are two children, EF and GH, and the Mother's case is both object to return. I raised with counsel what the position would be if I found that one of the children had raised the defence but where objections were not established in respect of the other child because, for example, the child's age and maturity did not allow me to reach a conclusion on the facts which had effects for the purposes of the Convention. Both counsel accepted that, on the facts of the present case where the Mother was caring for both children, the defence would be established and the discretion came into play if either child held objections which were sufficient for the gateway stage to be crossed. However, Ms Georges rightly submitted that the fact that only one child was shown to object would be a factor within the discretion exercise.
- The evidence of EF's objections comes from a number of sources. The Mother's case is that she was unaware of the children's concerns about how they say they were treated when they went to stay with the Father until they children came to England and, at that stage, the children started to say that they did not want to return to Spain to see the Father. She says that gradually the children disclosed what had happened during their periods spent with the Father, but that the information came from the children and she denies putting these ideas into her children's minds. I take full account of the fact that the Father completely denies that he was ever responsible for any abuse or ill-treatment of the children and I make no findings about the underlying primary facts because, for the exercise I have to undertake, it does not appear to me to necessary to make any findings on whether the allegations made by the children are true or not. I need to be focused on the thoughts and views of each of the children in order to determine whether either or both of them genuinely object to returning to Spain.
- The evidence about EF's views on a potential return to Spain comes from a number of different sources. The Mother explained that, having made these disclosures, she arranged for the children to have counselling. The counselling report said:
"The client's presenting issues include difficulties in processing past experiences while living in Spain and challenges in understanding and managing her emotions, particularly feelings of fear and a strong need to express what she has been through. The sessions offer a safe, creative, and non-pressurised environment that allows her to explore these experiences and emotions at her own pace. The client engages positively with the sessions, and feedback from her mother has been overwhelmingly encouraging"
- The report noted that EF "expressed fear at the thought of being taken away and harmed by her father" and that "She appears to have found this sense of safety in her current living situation in England, which is vital for her continued wellbeing and recovery". That report is support for the submission that the EF genuinely feels these concerns, irrespective as to whether the facts on which this feeling is based are true or not.
- The Mother arranged for EF to be seen by a Consultant Clinical Psychologist who produced a report dated 9 January 2025 after having undertaken a psychological assessment of the children in a session where the Mother was not present. The Psychologist records that EF told her:
"I am scared to go back to Spain …. I really don't want to go back to Spain … He wants us to go back to Spain, I think he's really mad in my worry brain and in my heart I'm scared. I don't want to go. I have nightmares …"
- The Psychologist concluded that:
"In conclusion it is my clinical opinion but both EF and GH are exhibiting clinical symptoms of distress in relation to what they allege happened to them whilst living in Spain and that they also live in fear that they will have to return to Spain to spend time with their father and his family. It is also my technical opinion that sending EF and GH back to Spain whilst they are exhibiting these symptoms would put them in an intolerable situation"
- Ms Georges submitted that I should be cautious about placing any reliance whatsoever on material produced by the counsellor or the clinical psychologist because they were both working on the basis of facts as presented to them by the Mother. I do not accept that submission. It seems to me that both set out in writing what they heard the children say to them and, in the case of the Psychologist, she formed a professional opinion which was within the scope of her expertise about EF's psychological state. Whilst I am not bound to accept this evidence if it were to be contradicted by other evidence, I consider that I am entitled to take it into account in showing EF's genuine state of mind in relation to a potential return to Spain.
- The children were seen by a CAFCASS officer, Ms Allison Baker, who produced a detailed report dated 11 December 2024. EF reported to Ms Baker that she would be "terrified" if she had to go back to Spain and that this fear was related to the prospect of seeing her Father again. She was asked a series of questions about her recollections of her time in Spain and had some good memories as well as bad ones. Ms Baker reported one exchange as follows:
"When asked if she knew what her father wants EF replied "to kill us". I suggested that this was not what he wanted, but rather to see her again and she said this would make her "very happy""
- Ms Georges suggested that this showed that EF was wholly inconsistent in her approach and thus I could not rely on her stated views about a return to Spain. In contrast, Ms Compton for the Mother submitted that this exchange should be read as Ms Baker posing a potential set of facts for EF, namely asking her how she would feel if she was wrong in her concerns about her Father's intentions, and asking her how she would feel if in fact she could be sure that her Father did want to see her. Thus, Ms Compton suggested, EF was being asked how she would respond to what was, in her mind, a counterfactual situation. It seems to me that Ms Compton is probably right that this is the right way to read this exchange. I accept that EF would want to see her Father if she could be confident that her previous experiences of abuse at the hands of her Father and members of his family would not be repeated. However, as Ms Compton rightly submitted, Ms Baker could not provide that type of reassurance and that suggestion does not displace her underlying fear of returning to Spain. Ms Baker's report then said:
"Using a scaling exercise EF identified that she would be very unhappy were she to return to Spain (selecting a score of one) and remarked "because I don't want to go back and I don't want to be killed"; that she would be very happy to stay in England (selecting five); that she would be very unhappy to return to her school in Spain; and that she was very happy at her school here"
- The Father's case, as now developed, is that (a) the children never suffered any abuse at his hands and he never saw any abuse by members of his family, (b) that the children had been coached by the Mother to make allegations of abuse as part of her overall case to try to ensure that they could stay in England, and (c) that the children did not really believe that they had been subject to any abuse and were merely repeating matters that the Mother had coached them to say. There is nothing in the reports by the counsellor, the psychologist or in Ms Baker's report to support the case that the children were not expressing their real views. In my experience, CAFCASS officers dealing with High Court cases are hugely experienced in dealing with international abduction cases and it is far from uncommon for allegations to made that disclosures about inappropriate behaviour by a remaining parent arise from coaching by the abducting parent and CAFCASS officers are astute to discern whether views reported to them by a child are the child's own views or whether the child has been coached by the abducting parent. Thus, I approach this report on the basis that, if Ms Baker had had any concerns that EF was not reporting her own views but was merely repeating things that her mother had persuaded her to say but which EF did not herself believe, Ms Baker would have included reference to those concerns in her report. Ms Baker has not included any such reservations and thus I have no basis to conclude otherwise than that Ms Baker is setting out views that she believed EF genuinely held.
- It would have been open to Ms Georges to ask for Ms Baker (who was present in court on the first day of the hearing) to give live evidence so that she could be asked whether she had any concerns that the matters that EF was reporting to her were not her genuine views. Ms Georges accepted that she had made the decision not to ask for Ms Baker to give live evidence and not to ask her these questions. She sought to rely on what she claimed were inconsistencies in EF's views as set out in the report to show that EF did not genuinely hold the concerns that she had reported. It is a matter for Ms Georges how she chose to run her case but, in the absence of any suggestion in Ms Baker's report that EF did not genuinely hold the views ascribed to her, I accept that Ms Baker's evidence indicates EF's genuine views. I repeat for the purposes of any future welfare hearings that the fact that EF held these views is not conclusive evidence that they were based on an experience of abuse. I make no findings as to whether either child had in fact experienced any abuse.
- Nonetheless, looking at the material as a whole, I accept that the gateway has been crossed and that EF objects to a return to Spain. I accept that she is genuinely terrified about a return to Spain because she would be worried that this would result in her having to spend time with her Father, and I accept that any proposed return to Spain would cause her significant distress.
- Given my finding in respect of EF and given the concession made by Ms Georges, I do not need to consider separately whether GH objects to a return to Spain. The material suggests that his level of objection is lower than his sister's and he may well not have sufficient age and maturity to have formed relevant objections for the purposes of the Convention. The evidence clearly supports a case that he would prefer not to return to Spain, but I do not need to make any finding as to whether that preference amounts to a relevant objection.
Intolerability and grave risk: article 13(b).
- 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;
a. The bar is high to proving this defence;
b. Intolerable harm means a situation which the particular child should not be expected to tolerate in the circumstances. Harm includes both physical and psychological harm. This encompasses exposure to the physical and psychological harm done to a parent;
c. The source of the risk of harm is irrelevant such that it may stem from the subjective perception of a parent which could have intolerable consequences for the child; and
d. If the risk is serious enough the court is not only concerned with the child's immediate future as the need for protection may persist.
- 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.
The exercise of discretion.
- Given the findings I have made, I exercise my discretion not to order a return. The fact that I have found consent suggests that the principles of the Convention in favour of return, as urged on me by Ms Georges, have limited weight for the reasons explained by Lord Justice Jackson in Re PJ. The children are now settled in the UK and doing well at school here whereas there are enormous uncertainties for the children if they were return to Spain. I accept that this is the working out of a plan that the Father and Mother made on about 4 August 2024. I conclude that the Father changed his mind either as a result of the disclosures made by the children or for other factors, but I accept that EF is terrified of a return to Spain and, given all the facts of this case, it does not seem appropriate to me to subject the children to all of the uncertainties which would inevitably arise following a return to Spain now that they are now settled in the UK.
- Whatever the truth of the allegations made by the Father against the Mother, I express the hope that a route will be found for the children to re-establish a functional relationship with their father. I have found that the Father oscillates between times when he has a deep love and commitment to the children and times when he is a high level of anger and antagonism towards the Mother and, to some extent, against the children. Having heard him give evidence, I am sure that there is a very large part of him that wants to be part of the lives of the children and that the dominant part of him is devoted to the children and, notwithstanding that he agreed they should go to live in England, he has the potential to play an important part in their lives. It will now be for the Mother and the Father to work out between them whether they can find a child-focused way to gradually show the Father's best side to the children and rebuild the children's trust in him as a caring parent. That may be a long, slow process and I express the hope that it could be done by agreement between the Mother and the Father as opposed to being the subject of further litigation. However, if there is to be further litigation about the arrangements for these children, it will have to take place in the UK as opposed to in Spain.
- I therefore dismiss this application.
