SJ (A Child), Re (Habitual Residence: Application To Set Aside) [2014] EWHC 58 (Fam)

[2014] EWHC 58 (Fam)Case No GU12P01019
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/01/2014
Before
MRS JUSTICE PARKER
Between
Applicant MotherApplicantRespondent FatherRespondent
Re SJ (a child)(Habitual Residence: Application to Set Aside)
Hearing Hearing dates: 14 October 2013
Ms J. Moseley (instructed by Thursfields Solicitors) for the Applicant Mother
Mr M. Jarman (instructed by Duncan Lewis) for the Respondent Father
Judgment
MRS JUSTICE PARKER
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 [or, in the Court of Protection the incapacitated person] and members of their [or his/her] 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.
Mrs Justice Parker :
[1]S is 9 and the subject of proceedings in England and Spain. The English court has declared that she is habitually resident here and made other consequential directions. The Spanish court has refused to return her to this jurisdiction pursuant to the Hague Convention.[2]M’s application is to set aside declarations made by the English Court on 14 December 2012 and 7 February 2013 as to(i) habitual residence(ii) wrongful retention. Alternatively she invites the court to reassess habitual residence as at today’s date.[3]F’s primary application is for: i) S 8 orders: Specific issue order for return of S to UK, residence and contact. ii) F’s application to ‘set aside’ a judgment in Malaga dated 12 June 2013. iii) The immediate return of S in accordance with Article 11(6)- (8) of Council Regulation (EC) No 2201/2003 (BIIR).[4]M is represented by Mr Mark Jarman and F by Ms Julie Moseley, who has taken a late return from Ms Nergis Mathew.[5]Although this is a jurisdiction issue, I record that the parties both raise serious welfare issues about S, on different grounds. M asserts that F has sexually abused S, and made a number of other allegations against him: and asserts that S has never bonded with him. F asserts that M neglects S, has turned her against him and compromised her welfare in other ways too. S has written a number of emails to F since her removal from England, long pre-dating the sexual abuse assertions, making a wide range of allegations (but not of sexual abuse) in rather wild and mostly unspecific language, and echoing the mother’s emailed complaints: from failing to send a birthday present to alleging that F is a ‘killer’ because he was responsible for his father’s death: an accusation also made by the mother.[6]There is a detailed chronology in the court papers. This is the essential background.[7]The parents are married and share parental responsibility for S. All three have British nationality and passports. They separated finally in early 2011, after which F had contact. S was born in England. She lived abroad for a time and then returned to England in 2008 or 2009 until M, who said that she had obtained a job in Gibraltar, took her there in September 2011 with F’s agreement. F says that this was intended to be temporary, “conditional on short duration”, for one to two years: and that he was to have contact to S.[8]On 28 November 2011 the parties had a conversation via Skype. M told F that she had lost her job and had taken up a new job. F queried this and said that he would ask her to return to the UK with the child. M confirmed that she had intended to move to Gibraltar for 1 – 2 years. F did not press for S’s return at that point.[9]F says that he has never seen any independent evidence to show that M ever had a legitimate job in Gibraltar.[10]On 17 July 2012 M emailed F stating that she was moving in with a new partner. She did not give an address, or mention Spain, or leaving Gibraltar.[11]On 25 July 2012 M discussed finances with F and offered contact. Two days later she left a voice mail stating that there would be no contact.[12]At some point in July or August 2012 M moved with S to Southern Spain. She did not inform F before or after her departure. M asserts that she moved in July 2013. F asserts that this cannot be correct: he refers to documents including information from her landlady which indicate that it must have been in late July or early August.[13]On 2 August 2012 F sent an email withdrawing his consent to S remaining in Gibraltar with immediate effect and sought her return within 1 month. He did not refer to Spain and says that this was because he did not know of any plan to take S there. M did not respond.[14]F says that at the very beginning of September 2012 S’s Gibraltar school told him that she was attending school in Spain. F says that that was the first time that he knew that S had left Gibraltar and was in Spain.[15]F says that the mother and S stayed first in Marbella and then in Estepona.[16]S has attended at least two and possibly three schools since her arrival in Gibraltar.[17]F took some legal advice. On 13 November 2012, acting in person, he made an application for residence, contact and a specific issue order seeking S’s return from Spain.[18]HHJ Nathan, sitting at Guildford County Court, listed an urgent hearing on 14 December 2012. The court was to consider whether it had jurisdiction and if so consequential directions. Provision was made for filing of skeleton arguments and for M to attend by video link and for her to be served by text or email. Her address was still not known.[19]F still had no information from M about S’s whereabouts.[20]F, still in person, emailed M to inform her of the hearing. I am satisfied, contrary to her later assertion, that she was served by him by email/text with a complete bundle of documents including a position statement as to the law.[21]M attended the hearing on 14 December by telephone link and participated in the hearing. Her position statement/evidence had not arrived. She says that she had forgotten to attach it to her email. She answered the judge’s questions.[22]Judge Nathan declared that(i) S was habitually resident in England and Wales(ii) irrespective of S’s current presence in Spain and formerly Gibraltar, the English Court has jurisdiction to entertain father’s CA 1989 application. He ordered contact on three consecutive days in Spain over the Christmas holiday. I have a transcript of his judgment, amended by him although not finally approved, agreed by the parties to be essentially correct.

Judge Nathan:

[23]a) Was aware that he had not received M’s written response. b) Recorded that F was categorical that he had never given consent for anything more than a temporary move of 1-2 years although M said that that was not true and F had given his consent to a permanent removal. c) M agreed that she had left Gibraltar without informing F or supplying an address, which she disclosed to the court and thus F for the first time. d) Although he did not hear evidence, he formed the view on the balance of probabilities that it was unlikely that F would be in court, paying for his own representation, if he had agreed to a permanent relocation, and thus that the relocation had not been a permanent one. e) He found that living in Gibraltar could not have led S to be habitually resident in Gibraltar, and that a move to Spain to an address unknown to F could not have given her habitual residence in Spain in the short period that she had lived there. f) On the basis of the authorities, in particular Mercredi v Chaffe [2011] 1 FLR 1293, and Re I (A Child: Habitual Residence) 2012 EWHC 3363, the temporary arrangements to which she had been subjected to since June of July 2012 did not affect that question, nor did they mean that M’s habitual residence could otherwise dictate a habitual residence for S outside England and Wales. g) M stated that she was ‘not averse’ to contact. h) He declined to make a ‘draconian and peremptory’ order for S’s return at that time. He bore in mind that M had employment in Spain and that he had not had an opportunity to see her evidence or to take legal advice.[24]Judge Nathan gave M the opportunity to be legally represented at the next hearing set for 28 January 2013. Three days after the hearing of the 14 December, M made allegations that F had sexually abused S, in England. She asserted that those allegations had been made spontaneously by S after the hearing of 14 December.[25]On 20 December 2012 M made an ex parte application to the Spanish Court for precautionary measures. Incidentally: a) she did not mention the UK proceedings or that F was to have contact; b) she was legally represented at that hearing.[26]There was email correspondence between the parties on 21 and 23 December about Father’s forthcoming visit. But when F travelled to Spain S was not at the address given. When he attempted to find her at M’s boyfriend’s premises he was arrested and kept in custody overnight until released by the examining magistrate.[27]On 25 January Judge Nathan transferred these proceedings to the High Court and ordered that the case be listed before Theis J (FDLJ for South Eastern Circuit South).[28]F submitted his application to the ICACU (Child Abduction Unit) on 1 February 2013.[29]On 7 February 2013 Theis J, further to Judge Nathan’s order of 14 December 2012, declared “on the basis of the information and evidence before the court, and pursuant to Article 15 of the Hague Convention, that [S] was wrongfully retained by M when she moved S from Gibraltar to Spain in about July 2013.” M attended the hearing by telephone, had submitted evidence, and fully participated. Theis J explained fully to M the process of appeal. The case was further adjourned.[30]F was notified that there was to be a hearing in Spain on 17 April 2013 for M’s application for precautionary measures and the lawyer at the Office of the Head of International Justice was asked to assist with ‘judge to judge’ communications. F requested a stay of the Spanish proceedings.[31]On 10 April 2013 Judge Nathan declared, further to the declaration of 14 December 2012, that S is habitually resident in England and Wales, this court is first seised of this matter and as such the Spanish proceedings should be stayed pursuant to Article 19 (2) B II R and (ii) the court has considered the power to transfer the proceedings or part thereof to another member state and declines to do so.[32]On 17 April 2013 M’s Spanish application for precautionary measures was refused with costs. The court stated that the application had “no origin other than to thwart what has been decided in a court with jurisdiction.”[33]On 2 May 2013 F’s Hague Application was heard by the Judge of First Instance, Judge Gloria Munoz Rosell, in Malaga. Both parties were represented. M was present, and gave evidence. F was not present, due to short notice of the hearing. Judgment was reserved.[34]At a hearing before Judge Nathan on 5 May 2013 M indicated her intention to seek to set aside his order of 14 December 2012 and that of Theis J on 7 February 3013. The Judge refused to list or hear the potential application and she was directed to file a formal application. He ordered a transcript of the 14 December judgment at public expense. F’s application was adjourned to await the Spanish decision, and M’s application to appeal the refusal to list her application was refused.[35]On 12 June 2013 the Court in Malaga delivered a reserved judgment in F’s Hague application. I have a translation, and the original. The Court recorded that: i) F had agreed the move to Spain on a temporary basis, for 1-2 years. ii) He had told M that he objected to the child’s move to Spain in August 2012 (that does not in fact reflect Father’s position: see above). iii) The Guildford court had made declarations as recorded above and ordered contact. iv) M had made allegations of sexual abuse. v) It was common ground that S was rejecting her father.[36]The court set out article 3 of the Hague Convention:
“the removal or retention of a child is to be considered wrongful where- (a) it is in breach of rights of custody attributed to a person, and institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) At the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”
[37]The Court stated that:
“In this case, the minor’s stay in Spain cannot be regarded as wrongful removal or retention, insofar as M was actually exercising rights of custody over the minor, under the law of the United Kingdom, since F had agreed to the change of residence for an extended period of time, one or two years, as the applicant himself acknowledges.”
[38]The Court then went on to rule that since that F was applying for contact (access) only, he was not exercising parental responsibility. There is no indication that the Court appreciated that F has parental responsibility in English law which includes the right to be consulted on the relocation of a child to another jurisdiction. Certainly in this jurisdiction, he would be regarded as exercising rights of custody, since he has requested the child’s return.[39]The Court did not rule on habitual residence. But it did say that since M had been exercising rights of custody lawfully and with parental authorisation which extended to residence, and the period of 1 year referred in Article 12 of the Hague Convention had already elapsed.[40]The judgment concludes by reciting Article 11 (6) of BIIR.

The Judge said:

“Based on the said legislation, and this court not having jurisdiction to examine whether or not the English Court has or has not jurisdiction on the substantive question, it is true that the proceedings are being processed before the oft-mentioned Court, and M must be asked before the same Court, to resolve issues relative to the custody of the minor, access arrangements and place of residence.”
[42]The Judge’s decision recites that “I do declare that there is no reason to agree the return of [S], the parents being able to resolve the substantive issue before the Guildford Court”.[43]Thus it appears that the Spanish Court specifically cedes the question of jurisdiction.[44]F appealed the Spanish decision in July 2013, M filed a response and a decision is awaited.[45]M’s solicitors made repeated attempts to obtain the transcript of Judge Nathan’s judgment. It was finally received in draft on 13 August 2013. M’s application for set aside was issued out of the PRFD on 14 August 2013. Her reasons were (I summarise): i) She had not filed and the court did not hear evidence. ii) Factual issues were not tested by the court but declarations made on the basis of father’s submissions. iii) The court was not referred to decisions establishing that a temporary or trial move may be sufficient to establish a child’s habitual residence.[46]Judge Barnett gave directions on 14 September 2013 on M’s application, and on F’s (potential) application for return of the child pursuant to Art 11 (7)-(8) BIIR.[47]As a result of a hearing before a deputy High Court Judge on 23 September 2013 clarification was sought from the Office of the Head of International Family Justice (OHIFJ).[48]Apart from dealing with a number of factual issues subsumed above, the liaison judge responded that: i) The application was F’s application for return pursuant to the Hague Convention. ii) The answer to the question of whether the Spanish court had determined that the child is habitually resident in Spain was “The Judge had only dealt with the claim under the Hague convention.”[49]On 25 September 2013 the case came before me as vacation judge dealing with International cases. I set down the hearing on 14 October 2013: and heard it then.[50]F's appeal has not yet been decided. Whilst preparing this judgment a further bundle of documents from the Spanish Liaison Judge has been transmitted to me through the OIFJ.

The arguments

[51]The mother’s primary case to set aside the declarations is that by the hearing on 14 December 2013 S had lost her habitual residence in England and had become integrated into family and social life in Gibraltar on the basis of F’s consent for removal for 1-2 years. F submits that this court has no power to set aside the declarations of Judge Nathan and Theis J and the only proper route is appeal. M’s application was misconceived and an attempt to appeal the decision by the back door.[52]Mr Jarman submits that although the Spanish judge did not say so, it must be implied that the Court found that the child was now habitually resident in Spain. I do not agree.[53]M’s case is that if the Spanish Court did not find that S was habitually resident in Spain: i) This Court in any event has a positive duty to review the issue of jurisdiction constantly: this is implicit within the Regulation and in particular Articles 8, 9, 12, 13, 15 and 17. ii) Art 15 emphasises the positive obligation on the court to review the issue of jurisdiction and specifically where a member state “has become the habitual residence of the child after the court referred to in paragraph 1 was seised”: Art 15 (3) (a). iii) Thus I must consider whether S is habitually resident in Spain now, since she has been physically in Spain for one year as at the date of the hearing.[54]There is no support in any of the cited articles for Mr Jarman’s argument that the court has a continuing duty to review the issue of habitual residence. i) Under article 8 the question is the child’s habitual residence “at the time the court is seised”; ii) Under article 9 the child’s habitual residence transfers to the new state 3 months after removal only if the removal is lawful; iii) Article 10 (child’s habitual residence transfers after a year) only applies no request for a return has been lodged; iv) Article 12 relates to prorogation of jurisdiction, which can only be done by agreement; v) Article 13 gives jurisdiction on the basis of presence only if the child’s habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12; vi) Article 15 permits the court to transfer the proceedings to a “court better placed to hear the case”.

Failure to Consider Facts

[55]M’s case is that Judge Nathan was not entitled to reach a decision on facts.[56]It is important for habitual residence to be established as early in the proceedings as possible. If there is delay then the object of the Hague Convention is frustrated.[57]Judge Nathan’s determination on 14 December 2012 was at an inter partes hearing. Mr Jarman submits that the judge was in error in that he heard no evidence. But there is no obligation on the court to hear evidence. Habitual residence is an issue usually tried on the papers. The courts have stressed repeatedly that contemporaneous material is likely to be the most reliable. In any event M spoke to the judge direct and amplified her case in response to questions. M says that she did not have a full enough chance to participate: but she did participate.[58]Judge Nathan’s rejected M’s primary case that F had consented to permanent relocation of S to Gibraltar because of the inherent unlikelihood of F pursuing the case in that event. Nothing that M could have said would have addressed that point. Her later statement makes the same factual points as considered by the judge.[59]M’s assertion that F agreed to the move to Spain is not supported by any independent evidence and is negated by email correspondence and by her surreptitious actions. Likewise the Judge was not required to hear oral evidence as to this. F had revoked his agreement by email to S remaining in Gibraltar and called for her return as at 2 August 2012. The correspondence is wholly inconsistent with an agreement for S to move to Spain. M’s stated intention to move in with her partner does not refer to a location.[60]It is also no reason for impeaching the Judge’s decision that he did not have M’s skeleton argument, since she had failed to send it to him. It was incumbent on her to check that it was properly attached to the email.[61]The Judge also had before him, exhibited to F’s statement, the transcript of a Skype conversation on 28 November 2011. At this point M had lost her job. The following extract is important: F. How much longer are you planning to stay in Gibraltar? M. I don’t know… F. Because, as we discussed it, this was a short term fix to your financial situation… M. We talked about 1-2 years F. We talked about it being short-term… M. We haven’t gone 1 year (sic), We haven’t even gone six months F. then asks about M’s employment situation and states that he agreed to the relocation because of her job offer M. what are you getting at F. At what point do you actually say- this isn’t working and …’ (end of relevant extract)[62]In the light of the written material it is hardly surprising and indeed probably inevitable that the judge rejected M’s case that F had agreed to a permanent relocation either to Gibraltar or to Spain, which was her case, and her only case. (That case was notably not advanced on her behalf before me.) He formed his overall conclusion on habitual residence on the material presented to him. The question of whether he applied the right test will be dealt with separately.[63]M had the fullest opportunity to participate in the hearing before Theis J.

Service

[64]Mr Jarman submits that M was not served within the meaning of and by the route specified in BIIR. He refers me to regulation (EC) No 1393 /2007 of the European Parliament “The Service Regulation”. He submits that it is not clear whether F knew M’s address or not. F says and has always said he did not know M’s address. M admitted before Judge Nathan that this was correct. So this is a non-point.[65]Art 1 (2) of the Service Regulation provides that it “shall not apply where the address of a person to be served is not known.” M was served by email and text in accordance with Judge Nathan’s order. I treat this as good service.

Revisiting the decision

[66]Mr Jarman asks me to revisit the decision in any event. Miss Moseley submits that I am not permitted so to do, and that the only proper route is appeal.[67]The legal issue is whether the judge applied the right principles. Mr Jarman argues that the Judge ought to have found that since S had been out of the jurisdiction with her father’s consent for 15 months she had lost her English habitual residence. In particular he ought to have been referred to al Habtoor v Fotheringham [2001] 1FLR 951, Re P-J (Abduction: Habitual Residence: Consent) [2009] 2 FLR 1051, and Re H-K [2011] 1 FLR 436. M also now relies on the decision of the Supreme Court in In the matter of A (Children) (AP) [2013] UKSC 66 which postdates the decisions of Judge Nathan and Theis J by many months.[68]Ms Moseley has referred me to Rule 4.1 (6) FPR 2010:
“A power of the court under these rules to make an order includes a power to vary or revoke the order.”
She submits that this is identical to the power contained in CPR. 3 (7) 1998. She refers me to Lloyd’s Investment (Scandinavia) Ltd v Ager Hanssen [2003] EWHC 1740 (Ch) where Patten J (as he then was) stated: “It seems to me that the only power available to me on this application is that contained in CPR [Part 3] (7), which enables the court to vary or revoke an order. This is not confined to purely procedural orders and there is no real guidance in the White Book as to the possible limits of the jurisdiction. Although this is not intended to be an exhaustive definition of the circumstances in which the power of under CPR Part 3.1(7) is exercisable, it seems to me that for the High Court to revisit one of its earlier orders, the Applicant must either show some material change in circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly, it is not, I think open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ.[69]I agree with Miss Moseley. My jurisdiction is thus limited and no circumstances arise here to permit me to revisit a decision of a judge or judges with concurrent jurisdiction. The judge was not misled as to the facts and there has been no material change in circumstances.[70]Mr Jarman argues that the judge was misled as to the law and applied the wrong principles. This would be a matter for the Court of Appeal and not for this court. But I shall comment on his submissions in any event.[71]Mr Jarman argues that Re I was not an intra-European case: which is right. It is relevant to prorogation. The Judge was not in error in referring to it.[72]He also submits that Mercredi v Chaffe (Case C -497/10PPU) [2012] Fam 22 is a decision which focuses on Article 10. But subsequent authority has established that it is to be treated as relevant to Hague cases too, as the Supreme Court has confirmed in Re A, where extensive reference was made to Mercredi v Chaffe, and to its predecessor Proceedings brought by A (Case C-523/07) [2010] Fam 42.[73]In Re A at [37] the Supreme Court pointed out that Al Habtoor v Fotheringham, Re P-J, Re H-K and other decisions all built on the approach of the House of Lords in R v Barnet London Borough Council, ex P Shah [1983] 2 AC 309 which BIIR renders no longer appropriate. At [47] the Court cited Mercredi v Chaffe: ‘[49] … in order to determine where a child is habitually resident, in addition to the physical presence of the child in a member state, other factors must also make it clear that that presence is not in any way temporary or intermittent.[76]The Supreme Court continued at [50] “The court [in Mercredi v Chaffe] went on to point out that the child’s age is liable to be of particular importance. Normally it is the social and family environment of the child which is fundamental in determining habitual residence. But where the child concerned is an infant: 55 … An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent. Consequently, where … the infant is in fact looked after by her mother, it is necessary to assess the mother’s integration in her social and family environment. In that regard, the tests stated in the court’s case law, such as the reasons for the move by the child’s mother to another member state, the languages known to the mother or again her geographic and family origins may become relevant.” The operative part of the judgment put it in this way:
“The concept of ‘habitual residence’ … must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a member state – other than that of her habitual residence – to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that member state and for the mother’s move to that state and second, with particular reference to the child’s age, the mother’s geographic and family origins and the family and social connections which the mother and child have with that member state.” 55 … An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent. Consequently, where … the infant is in fact looked after by her mother, it is necessary to assess the mother’s integration in her social and family environment. In that regard, the tests stated in the court’s case law, such as the reasons for the move by the child’s mother to another member state, the languages known to the mother or again her geographic and family origins may become relevant.” “The concept of ‘habitual residence’ … must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a member state – other than that of her habitual residence – to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that member state and for the mother’s move to that state and second, with particular reference to the child’s age, the mother’s geographic and family origins and the family and social connections which the mother and child have with that member state.”
[74]It therefore cannot be argued that Judge Nathan was not referred to the correct principles.[75]In my view there were a number of factors relevant to the determination which supported his decision and fall within the Mercredi v Chaffe formulation: i) The instability of M’s circumstances in both Gibraltar and Spain. ii) The limited and conditional nature of F agreement. iii) M was not working in Gibraltar and had lost her job. iv) Mother’s plans changed swiftly from living in Gibraltar to moving to Spain to be with her boyfriend. v) The conversation in late 2011 demonstrates how unhappy the father was with the arrangements and that he wanted to review them. vi) The child had had a number of changes of school. vii) M and S had no family, linguistic, cultural or historical connections with Gibraltar (or indeed Spain).[76]In N v K [2013] EWCH 2774 Cobb J found that integration took place whilst the child was in the UK on time limited consent, but she had been in stable circumstances in the UK for 4 years. I agree that that is an important distinction.[77]I do not accept that S can be habitually resident in Spain just because she has been there for over a year during this legal process. F has parental responsibility. He had a right to be consulted. The mother could not lawfully move her without his agreement, whatever the position with regard to her habitual residence. The move was surreptitious and unilateral. He had requested S’s return and she was moved and then retained. She had been in Spain for a very short time when the father started his proceedings in England. I agree with Ms Mosely that “if the integration test were to include the period of wrongful removal, the danger would appear to be that it is in the gift of the remover to simply delay and not co-operate with proceedings in order to strengthen the case for habitual residence elsewhere”.[78]The declarations of Judge Nathan and Theis J stand. Appeal is the only route of challenge (subject to extension of time). The judge found that S had not ceased to be habitually resident in England and had not become habitually resident in Gibraltar.[79]I do not need to consider whether S is or was at the time of the institution of these proceedings or now habitually resident in Gibraltar or whether she had lost her English habitual residence and had no habitual residence.

Return order

[80]Article 11 (6)- (7) puts in place a mandatory mechanism for the court which has issued an “order of non-return” return pursuant to Art 13 of the Hague Convention to transmit the decision to the court with jurisdiction for that court to “to examine the welfare of the child”, Article 11 (8) provides that:
“Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under the Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.”
[81]I am satisfied as M submits that Art 11 (8) is not engaged where there the court concludes that the child was not wrongfully removed or retained within the meaning of Art 3, so that there is no power to order a return, but only if the court refuses return on a discretionary Article 13 ground. F concedes this.[82]The Spanish judgment does not spell out the basis upon which the application was refused, but it details the provisions of Art 11(6) of BIIR, and states that the mother must have the child’s living arrangements determined by the English Court, which I agree suggests that the effective ground of non-return was consent pursuant to Art 13(a).[83]Having given further thought to this point, which was not identified sufficiently, if at all, at the hearing before the Recorder in September 2013, I consider that the Spanish Liaison judge must be asked to address this issue. I have put this in hand. F’s solicitor has just established a point of direct contact. The question is: “did the judge refuse to return the child on the basis that she(i) was not wrongfully removed or retained, or(ii) because father had given his consent”.[84]The parties may wishes to pose other supplemental questions.[85]I therefore adjourn the return application. The issue is not the power to order return, since this court has jurisdiction, but enforceability. I accept that if Article 11 (8) is engaged, welfare enquiries will be necessary. I shall make arrangements for the case to be relisted before me. If no response is received from Spain within four weeks I shall determine the issue on the material available.

Article 15

[86]Mr Jarman asks me alternatively to transfer jurisdiction of my own motion to Spain pursuant to Article 15. This is an exceptional course. I note for instance the English decision in Re LM (A Child) [2013] EWHC 646 where the English court relinquished jurisdiction in favour of Ireland where the child had been born there and where there were existing care proceedings.[87]I can only transfer if a court of a member state, with which the child has a particular connection, “would be better placed” to hear the case, and where this is in the best interests of the child.[88]Mr Jarman submits that the Spanish court is the only court to have conducted a “properly constituted” enquiry into habitual residence. I reject that analysis. In an event the Spanish Court expressly considered that the English Court had jurisdiction and would exercise it.[89]The only connection which S has with Spain is that M has unilaterally removed her there without father’s agreement.[90]It is not in her interests for proceedings to be transferred there: in what is to my mind a blatant case of forum shopping.