Neutral Citation Number: [2017] EWHC 3768 (Fam) 
  No. FD17P00478 
 
IN THE HIGH COURT OF JUSTICE 
FAMILY DIVISION 
 
  Royal Courts of Justice 
  18th October 2017 
 
B e f o r e : 
 
MR JUSTICE WILLIAMS 
(In Private) 
____________________ 
 Re S (a child)   
 (Article 16 and 18 BIIa and Article 19 EU Service Regulation)   
 
____________________ 
 
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**This transcript is subject to Judge's approval** 
____________________ 
 
MR ALISTAIR G PERKINS appeared on behalf of the Applicant. (Instructed by Crosse & Crosse) 
THE RESPONDENT did not attend and was not represented. 
____________________ 
 
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    MR JUSTICE WILLIAMS: 
 
    I am concerned today with a young boy, SS who is now 5½ years old. His father is the applicant 
today, F who is represented by Mr Perkins, counsel. S's mother is M who is neither present nor 
represented today but as I shall turn to later, has been served with notice of these proceedings. S 
also has an older sister, A, who was born in 2003 or 2004 who is aged about 14. She has some 
relevance to these proceedings as, again, I shall return to. 
 
    The application which is before me today is for orders under the inherent jurisdiction of this court. 
It was issued by the father on 7th September 2017. That application sought wardship, together with 
child arrangements orders, and the thrust of the application today has been to invite me to make 
declarations relating to the jurisdiction of this court and to seek a return order directing that S be 
returned to this jurisdiction. 
 
    The immediate background to the proceedings is that S, his mother, and A came to live in the 
United Kingdom in September 2016 they having all lived prior to that in Spain. In the summer of 
2017, they returned to Spain ostensibly for a holiday with flights to return booked on 23rd August 
2017. However, on 13th August, the mother told the father that she would not return to England 
and, as a result, on 7th September the father issued these proceedings in tandem with an 
application which he had made to the English Central Authority for the return of S pursuant to the 
1980 Hague Convention. That application, I am told, has been forwarded to the Spanish Central 
Authority but, as yet, no proceedings have ensued. So although the father had issued these 
proceedings on 7th September, which were listed for a hearing on 20th September, on 15th 
September the Spanish court made an order which I shall return to later. By the time this matter 
came to court on 20th September, the father had received that order, I think, the day before. 
 
    On 20th September, Mr Justice Holman, on a one-sided but on notice hearing to the mother, 
made an order which contained a variety of recitals, in particular, at paragraph 8: the court was 
satisfied on a provisional basis that the child was, on 25th July 2017, habitually resident in this 
country; the child was wrongfully removed on that date, or was wrongfully retained outside the 
jurisdiction of England on 23rd August 2017; that the child's removal and/or retention was wrongful 
and in breach of the rights of custody attributed to the father and at the time of removing and 
retention, he was actually exercising those rights; and that the courts of England and Wales have 
jurisdiction in matters of parental responsibility pursuant to Articles 8 and 10 BIIA. 
 
    At paragraph 9 of the order, S was made a ward of this court and at paragraph 11, the court set 
out the list of issues which were for this court to determine today. At 11A, it recorded that the court 
was to consider whether the provisional recitals which I have just read out were to be made final 
Declarations and whether the court should order S's return forthwith to England, and a series of 
other orders concluding with whether the orders which it was proposed be made should be subject 
to recognition and enforcement under the provisions of Brussels IIA. The order, as I say, listed the 
application to be heard by this court today. It made provision for the mother to attend, I note with a 
penal notice being attached. It also provided for the mother to file evidence by no later than 13th 
October. It also provided for service of the proceedings on the mother in accordance with the law of 
Spain and also by email. 
 
    So the issues which I have had to consider today include those which were identified in the order 
of Mr Justice Holman but, in addition, I have had to consider the question of whether this court is 
first seized and the effects of Articles 16 and 19 of Brussels IIA. I have to consider an 'examination as 
to admissibility' under Article 18 of the Brussels IIA Regulation and Article 19 of the EU Service 
Regulation. In connection in particular with that, I have had to consider whether the mother has 
been validly served with these proceedings and thus been given an opportunity to defend them, 
which has required consideration of the means and timing of service, and whether there are any 
time limits which needed to be abridged, and ultimately and most importantly, what welfare order 
ought to follow on from the conclusions on the earlier issues. 
 
    The hearing has been listed for one day and I have heard evidence from the father. I have also 
heard the interpreter interpret from the witness box the Spanish order made on 15th September. I 
have received a series of documents in particular in relation to service. I have had Mr Perkins' helpful 
written skeleton and submissions, together with certain authorities. I have had the court bundle 
and, in particular, I have been able to read the statement of the father, the statement of the father's 
solicitor dealing with service, and the statement of service of a Spanish solicitor who personally 
served those documents. I am now giving an ex tempore judgment on all of those issues at shortly 
after four o'clock. 
 
    Turning briefly to the law, the principle jurisdictional issue really relates to whether S was 
habitually resident in England at relevant dates and thus whether this court has primary jurisdiction 
over him pursuant to Article 8 of Brussels IIA. The other issues require consideration, albeit in brief, 
of other aspects of the Brussels IIA Regulation and the EU Service Regulation as well as the Family 
Procedure Rules, and I shall deal with those where I deal with those particular issues. Also, of course, 
I need to consider the law relating to S's welfare. 
 
    So turning first of all to habitual residence, Article 8 of the EU Regulation provides, in terms, that 
the country where the child is habitually resident shall have jurisdiction over him. Habitual 
residence, in a very brief overview, requires an assessment of the degree of the integration of the 
child in a social and family environment. The interpretation of the principle of habitual residence 
derives from three cases in the Court of Justice of the European Union, namely Proceedings brought 
by A (C-523/07) [2009] 2 FLR 1, Mercredi v Chaffe (C497/10 PPU) [2011] 1 FLR 1293 and C v M 
(C376/14 PPU) [2015] 1 FLR 1, supplemented and clarified by the quintet of cases in the Supreme 
Court: A v A and another (Children: Habitual Residence) (Reunite International Child Abduction 
Centre and others intervening) [2013] UKSC 60; Re KL (A Child) (Abduction: Habitual Residence: 
Inherent Jurisdiction) [2014] 1 FLR 772; In the Matter of LC (Children) (No 2) [2014] UKSC 1; AR v RN 
(Scotland) [2015] UKSC 35, and In the matter of B (A child) [2016] UKSC 4. They have been 
summarised to a degree by Mr Justice Hayden in B (A Minor: Habitual Residence) [2016] EWHC 2174 
and drawing all of those strands together, the principles which I have to apply in determining where 
S was habitually resident are these. 
 
        (a) First of all, habitual residence is a question of fact and not a legal concept. 
 
        (b) Secondly, the question of habitual residence is to be determined identically in respect of a 
child irrespective of the legal convention, regulation, or Act that the question falls to be determined 
under. 
 
        (c) The test adopted by the European Court is the place which reflects some degree of 
integration by the child in a social and family environment in the country concerned. Its meaning is 
shaped in the light of the best interests of the child, in particular on the criterion of proximity. 
Proximity in this context means the practical connection between the child and the country 
concerned. 
 
        (d) A child will usually not be left without a habitual residence. If a set of facts could reasonably 
lead to a finding of habitual residence or no habitual residence, the former should be preferred. 
Complete integration is not required but the 'seesaw' analogy helpfully illustrates the linkage 
between the loss and acquisition of habitual residence. 
 
        (e) The social and family environment of an infant or young child is shared with those upon 
whom he is dependent. Hence, it may be necessary to assess the integration of that person or 
persons. A child does not automatically have the same habitual residence as a parent. The older the 
child, the greater the degree of distinction may be. So a school aged child will be different from a 
babe in arms, and an adolescent will be different again. 
 
        (f) the essentially factual and individual nature of the inquiry should not be glossed with legal 
concepts which would produce a different result from that which the factual inquiry would produce. 
 
        (g) Parental intent plays a part in establishing or changing habitual residence, but only in so far 
as it goes to the reasons for a child being present in a country or leaving that country and going to 
stay in another. Parental intent has to be factored in along with many other relevant factors in 
deciding whether a child has a sufficient degree of stability and is sufficiently integrated so as to be 
habitually resident. There is no requirement that child should be resident in a country for a 
particular period of time let alone there should be an intention on the part of one or both parents to 
reside there permanently. 
 
        (h) the state of mind of the child concerned may also be relevant to assessing their degree of 
integration. The majority in Re LC held it was only adolescents or those to be treated as adolescents 
whose state of mind was relevant. The minority (which included Baroness Hale) held that there was 
no logical reason to exclude the state of mind of younger children; 
 
        (i) The assessment of integration requires the consideration of objective and subjective factors. 
It is a comparative exercise involving consideration of the quality of the previous alleged habitual 
residence or that of the possible new habitual residence. The judge must take sufficiently into 
account the facts relevant to the old and new lives of the child and the family although need not 
necessarily do so in a side by side analysis of the sort carried out by Lord Wilson in Re B as long as it 
is apparent from the judgment as a whole that the exercise has been undertaken; It is the stability of 
a child's residence as opposed to its permanence which is relevant, though this is qualitative and not 
quantitative, in the sense that it is the integration of the child into the environment rather than a 
mere measurement of the time a child spends there. Expectations which the fact-finder may well 
find to be unfulfilled in the case before him: (a) the deeper the child's integration in the old state, 
probably the less fast his achievement of the requisite degree of integration in the new state; (b)the 
greater the amount of adult pre-planning of the move, including pre-arrangements for the child's 
day-to-day life in the new state, probably the faster his achievement of that requisite degree; and (c) 
were all the central members of the child's life in the old state to have moved with him, probably the 
faster his achievement of it and, conversely, were any of them to have remained behind and thus to 
represent for him a continuing link with the old state, probably the less fast his achievement of it." 
 
        (j) The requisite degree of integration can, in certain circumstances, develop quite quickly. It can 
arise in a single day. 
 
        (k) the 'rule' propounded by Lord Scarman in Shah that habitual residence is to be judged by 
objective factors is to be consigned to history. Subjective state of mind is as susceptible to proof as 
other matters particularly in the digital age 
 
        (l) the previous rule that 'habitual residence' cannot be changed without the consent of all 
holders of parental responsibility is to be discarded. Whether a holder of parental responsibility has 
consented may affect the quality of integration but is not a bar to habitual residence changing; 
 
    So as Mr Justice Peter Jackson said Re F (Habitual Residence) [2014] EWFC 26, the court must 
conduct a factual enquiry tailored to the circumstances of the individual case. 
    In terms of welfare, in considering interim orders regarding S I apply s.1(1) of the Children Act - his 
welfare is paramount; s.1(2) - delay may be prejudicial to his welfare; s.1(2A) - the presumption of 
parental involvement; s.1(3) - the welfare checklist; and s.1(5) - I remind myself I should only make 
an order if I consider it would be better to do so than to make no order. 
 
    Turning now to the evidence. The father is now aged 51. He is a dentist who, for the last few 
years, has been in practice in England. The mother is aged 45. She is, by occupation, a 
physiotherapist and has historically worked in Spain. S's half-sister, A, was born in about 2003 or 
2004 and so she is now aged 13 or 14. The parties married, I think in Spain, on 23rd October 2010 
and S was born on 28th April 2012. Because of the economic recession in Spain, the father was not 
prospering financially and so he decided to relocate to England in order to practice dentistry here 
and in 2013 he moved to England. The mother, A, and S remained behind in Spain and the father 
visited Spain, I think, about eight times a year. I am not sure whether the mother and children visited 
him in England. 
 
    In any event, by about Easter 2016, the mother and father had been discussing a plan for the 
family to relocate to England and around Easter 2016, the mother, A, and S came to England and 
school places were applied for in respect of A and S. There was an issue in relation to A because her 
father, I think, lives in Madrid and she was having contact with him on a fairly regular basis. Of 
course, her moving to England would have had an impact on that. It seems that the agreement that 
was reached by the mother with A's father was that A would come to England for a year and 
certainly the father understood the position to be that A would return to Spain after a year and live 
with her father. Whether that, in fact, was truly the position, I cannot determine. 
 
    In any event, in September 2016, the mother, A, and S indeed did come to England to live and join 
the father in his rented accommodation. The children commenced school. S started in the reception 
class at primary school. He started to integrate into his community. He started playing football on 
Saturdays and he made friends at school. The father says that the mother was taking English lessons 
with a view to commencing work as a physiotherapist in England. It seems from the father's 
evidence that A, although doing reasonably well I think he said at school, was not particularly happy. 
That perhaps is not a surprise for a teenager who had lived all her life in Spain. It seems that in 
general terms she was not happy with the move. That, perhaps, is in contrast to S who the father 
says was prospering in England, enjoying his life, had become fluent in English and was ready to go 
back to his primary school in Year 1 in September 2017. 
 
    In April or May, the family purchased tickets for the mother, A, and S to go to Spain for the 
summer holiday. On 27th May, S's residence in England was registered with the Spanish Consulate in 
London and around that time, the mother and father began to look for a property to purchase in the 
South West of England. It was, I think, just before the mother, A, and S travelled to Spain that the 
family saw a home which they wished to buy and shortly after the mother, A, and S left for Spain, an 
offer to purchase the property was accepted and the purchase process was commenced. However, 
on 13th August, the mother informed the father that she did not intend to return to England with S. 
 
    The father says this was against a backdrop where he had been uncertain as to what was going on 
in her mind over June and July because the mother had, for instance, shipped the family dog back to 
Spain. She had taken or was wanting to take all of S's clothing with him, including winter clothing, 
which was not required in Spain over the summer, and it may well be that the mother was planning 
not to return. However, in any event, on 13th August she told the father that she did not intend to 
return. The father I think got the impression, and certainly this seemed to be the effect of his 
evidence from the witness box, that A had made very clear when she got back to Spain that she was 
not happy about returning to live in England. Equally, she probably was not terribly happy about 
going to live with her father in Madrid, which would have required a change of carer and a change of 
schools. Perhaps as the father indicated, A was saying to her mother in no uncertain terms that she 
wanted to resume the life that they had led in Spain prior to coming to England in the summer of 
2016. The mother plainly then was torn between her daughter wanting to remain in Spain and 
herself wanting to pursue her family life with the father and S in England. However, she chose, in the 
end, to remain in Spain. 
 
    Thus, on 23rd August, the return tickets on the easyJet flight from Madrid to Bristol were not 
used. S, the mother, and A have remained in Spain since with S, I understand, returning to school, A 
returning to school, the mother resuming occupation as a physiotherapist, and S being cared for in 
the afternoons after school ceased at two o'clock by his maternal grandmother. 
 
    In the early part of September, perhaps late August and early September, there were significant 
difficulties, the father says, in having contact with S. The mother claimed that the internet was not 
working although the father eventually ascertained that it was by directly connecting with S's iPad. 
Since then, some contact, either Facetime or Skype contact has been taking place on a more regular 
basis. 
 
    As a result of the retention, as I have already said, the father both made an application to the 
English Central Authority to commence the 1980 Hague Convention summary return process in 
Spain but also issued these inherent jurisdiction proceedings. The date on the proceedings is 7th 
September 2017. That is when the proceedings were sealed by the High Court of Justice Family 
Division and they were allocated case number FD17P00478. Those proceedings were sent by email 
to the mother and her lawyers and I will return to that in a moment. 
 
    It seems now as a result of enquiries that were made today, that on 14th September, exactly one 
week after the English court was seized, that the mother lodged an application with the Spanish 
court. The court then undertook a hearing on 15th September. The order that emanated from that 
hearing has been translated to me today. In effect, it seems to be an application for urgent 
provisional measures. The jurisdictional basis on which it is made refers to the Spanish criminal and 
civil codes. I do not know whether those, in turn, cross-refer to the Brussels IIa Regulation (EC) No 
2201/2003. They also refer to divorce proceedings or separation proceedings having been issued. 
 
    The father obviously was not given notice of that. The order expresses the hearing to have been 
urgent, in particular, on the basis of S's medical issues which the father tells me that whilst they 
were critical in his very early years, the tumour that he had has been operated on and now he is 
essentially a healthy and happy boy. The Spanish court made an order, so far as it is relevant, that S 
be in the custody of his mother and that he have one weekend per month visitation with his father. 
The Spanish court made provision for there to be a further hearing on 20th December and the order 
makes reference to the possibilities of the order being appealed. I shall return again to the contents 
of that order slightly later. 
 
    That order was then received by the father by email from the mother's Spanish lawyers on, I think 
he said, 18th or 19th September. I think it was the day before the hearing in front of Mr Justice 
Holman. So if that was 19th September, then he received it on or about 18th September. So the 
order was made by Mr Justice Holman on that date. Subsequently, steps have been taken to serve 
the mother which, again, I shall return to in a moment. That process culminated with personal 
service being effected by a Spanish solicitor on 3rd October. The mother was given until 13th 
October to file her evidence in response and to attend this hearing today which, self-evidently, she 
has not attended. 
 
    Turning now to the issues which I have to consider, first of all I have to consider the question of 
whether this court is first seized or second seized, and whether, in accordance with Brussels IIA, this 
court should proceed to determine the case or whether it should defer to the Spanish court. It is 
clear that this court was seized of these proceeding by the issue of the originating process on 7th 
September. Thus, the provisions of Article 16 of Brussels IIa are met in that this court is deemed to 
be seized at the time when the document instituting the proceedings is lodged with the court 
provided that the applicant does not subsequently fail to take the steps required to have service 
effected on the respondent. It is clear from the statement of service that the father has taken steps 
required to have service effected as well as trying various alternative means by email and airmail. So 
it is clear that this court was seized as of 7th September 2017. 
 
    That being the case, when the Spanish court had an application lodged with it on 14th September, 
Article 19 of Brussels IIa should have kicked in. Article 19 provides that where proceedings relating to 
parental responsibility relating to the same child and involving the same cause of action are brought 
before courts of different Member States, the court second seized shall, of its own motion, stay its 
proceedings until such time as the jurisdiction of the court first seized is established. It seems clear 
that the cause of action was essentially the same in that the mother was seeking custody and 
contact orders in the Spanish court whilst the father was seeking child arrangements orders in this 
court, which essentially are the mirror of custody and access orders. So the cause of action is the 
same and thus the Spanish court being second seized should, in compliance with Article 19, stays its 
own proceedings until this court has determined jurisdiction in this court is established. 
 
    I note that the father's solicitors have sent to the mother, the Spanish court, and the mother's 
lawyers a detailed letter which sets out the position in relation to what is said to be the jurisdictional 
issues. I have seen evidence that that was received and signed for by the mother on, I think, 9th 
October. I have not seen the signed for receipts for the service on the Spanish court and the 
mother's Spanish solicitors, but I hope that by some shape or form, that letter, which puts all of the 
relevant individuals in Spain on notice of the fact that this court was seized on 7th September, will 
be drawn to that court's attention. 
 
    So to the first question of whether this court was first seized and should it proceed to examine its 
jurisdiction, the answer is yes, it is first seized and I should proceed to consider my jurisdiction. 
 
    The second issue arises from Article 18 of Brussels II and Article 19 of the EU Service Regulation 
which kick in where a party to proceedings is habitually resident in another member state and where 
that individual does not enter an appearance. Articles 18 and 19 both, in terms, provide that the 
proceedings should be stayed where it is not shown that the respondent has been able to receive 
the document instituting the proceedings in sufficient time to enable them to arrange for their 
defence. That is the wording of Article 18. The wording of Article 19 is broadly similar although it is 
more directive in that it provides that: 
 
        "Where a writ has to be transmitted to another member state for the purposes of service under 
the provisions of this Regulation and the defendant has not appeared, judgment shall not be given 
until it is established that– 
 
        (a) the document was served by a method prescribed by the internal law of the Member State 
addressed for the service of documents in domestic actions upon persons who are within its 
territory, or 
 
        (b) the document was actually delivered to the defendant or to his residence by another 
method provided for by this Regulation." 
 
    So I have to consider whether the mother has been validly served with these proceedings and 
whether that has given her sufficient time to enter a defence. I am treating the mother as being 
habitually resident in Spain for these purposes. 
    Certainly, these proceedings were required to be served under the provisions of the EU Service 
Regulation by operation of FPR 6 and, in particular, PD6B. The originating process was supposed to 
be served and the respondent had a 21-day period in which to file an acknowledgement of service. 
Having looked at the evidence from the father's solicitor, it seems that the attempts to serve by 
email cannot be said to have been sufficiently effective to have put the mother on notice. Although 
they were sent to three email addresses of the mother's, there is no receipt to demonstrate that 
they were received by her nor is there a 'read receipt' to indicate that she had read those. The 
service on the mother's alleged solicitors which did elicit a response is ineffective because the 
response from the solicitors simply said that they were not instructed by the mother. 
 
    The airmail service of the original application has not been effected by registered delivery or 
signed for delivery and so that would not seem to accord with the requirements of Spanish law 
which require service by a method by which there can be clear evidence that the process has been 
delivered. However, in contrast to that, the order and all of the relevant documents have been 
subject to further service attempts, first of all again by airmail service although the signed for receipt 
relates not to all of those documents, but they have been served by personal service by Mr Gill. I 
have seen his Affidavit of service which confirms that he served them on 3rd October 2017, and that 
the respondent mother identified herself and accepted service of a list of documents which included 
the originating process, the court order, and notice of proceedings all in both English and in 
translated Spanish versions. So it seems clear that on the basis of what the European judicial 
network website says in relation to valid ways of serving in Spain, the mother now has been validly 
served in Spain by personal service. 
 
    She was served on 3rd October, which is only 15 days ago, and so she has not had quite the 21 
days which are provided for in FPR PD6B. However, as Mr Perkins rightly points out, the court has a 
discretion and power under FPR 4.1(3) to shorten or extend time periods for service if in accordance 
with the overriding objective. Essentially then, the court in relation to service may shorten time if no 
injustice is caused to the individual. 
 
    By shortening the time for service, I am satisfied, given that the mother has Spanish lawyers and 
has had them in place since at least 14th September, and that she has had the service in Spanish 
translation since 3rd October, that 14 days is more than adequate time for her to have taken steps 
to arrange for her defence. No document at all has been received either by the father's solicitors or 
by the court and I am sure that in the period that has elapsed in those 15 days that the mother, 
together with her Spanish lawyers, could have put together something which could have been put 
before this court in the form of acknowledgement of service, evidence, and/or submissions on the 
question of jurisdiction. 
 
    So in respect of Article 18 of Brussels IIa and Article 19 of the EU Service Regulation, I am satisfied 
that the documents were served by a method prescribed by the internal law of Spain. I am satisfied 
that it was effected in sufficient time to enable the respondent mother to defend this process. That 
means that I can proceed to judgment. 
 
    Moving on then to the question of my jurisdiction and whether habitual residence of S is 
established in England or not, I have already set out the evidence relating to his integration to 
England. He has been here for a year. He has been living with his mother and father in England for a 
year together with his sister. He has been attending an English school, acquiring the English 
language, and embedding himself in his community through activities such as his football club. I have 
no doubt that from his point of view, he has become habitually resident here over the course of that 
year notwithstanding there perhaps being some uncertainty in the mind of his mother as to what 
would happen at the conclusion of that year or some uncertainty or desire on the part of his sister to 
go home. 
 
    So I am satisfied that by July, the habitual residence that he had had in Spain, based on his living 
there throughout his minority until summer 2016 and all the links that he had in Spain - the fact that 
the family still retained a home there, he had relatives there, and no doubt some little chums from 
his former existence there - whilst those roots still remained in Spain, they have been sufficiently 
uplifted from Spain by the putting down of roots in England such that Lord Wilson's seesaw had 
tipped decisively away from Spain over the course of the year and have landed firmly in England. 
 
    Thus, by the time he left England, he was clearly habitually resident here. Did that alter by 23rd 
August as a result of his being back in Spain? In his mind, it would seem he was returning to Spain for 
a holiday rather than returning there to live because that was the nature of the agreement between 
the parents at the time he left. He had only been back in Spain by 23rd August for about four weeks. 
He had not been, I do not suppose, or the evidence does not establish that he had been in nursery or 
that he had really re-established any roots in Spain beyond those which one would expect a 5-year-
old to re-familiarise themselves with as a result of being on holiday. So whilst undoubtedly he would 
have been integrating again into that framework that existed in Spain prior to him moving to 
England, I am not satisfied that it was to a sufficient degree to pull up his roots in England and tip the 
seesaw back in favour of Spain. 
 
    Equally, by 7th September, another two weeks had passed. He may perhaps have just gone back 
to school and so would have certainly been re-familiarising himself and beginning the process of 
reintegration into a Spanish way of life but, at the same time, he had been expecting to come back 
to start Year 1 in his primary school in England and his dad was back in England. It must have been 
somewhat confusing for him as to what was going on particularly as there was relatively limited 
contact between him and his father at that point in time. On a clear balance, in my view, the seesaw 
was still tipped in favour of England as at 7th September when these proceedings commenced. 
Therefore, I am satisfied that he was habitually resident in England and thus this court has 
jurisdiction pursuant to Article 8 of Brussels II. 
 
    Given that he was not returned from Spain on 23rd August when he was expected to, I am 
satisfied that that is a breach of the father's rights of custody under English law which arise through 
both the origins of his parental authority under Spanish law which would have been, in any event, 
converted into parental responsibility under English law by operation of the applicable law 
provisions of the 1996 Hague Convention. The non-return of S on 23rd August was therefore a 
breach of those rights which he was exercising at the time and I will make declarations in those 
terms. 
 
    It being a wrongful retention in Spain, Article 10 of Brussels IIa also kicks in to supplement Article 8 
to maintain jurisdiction in this country. Unless and until the loss of jurisdiction provisions under 
Article 10 are fulfilled, which is a matter for this court to determine, plainly none of them are fulfilled 
at the moment and so I have substantive jurisdiction over S. 
 
    So having established all of those preliminary points, what orders shall I actually make in respect 
of S who is, as I say, a 5½ year old? The first issue I have asked myself, before making any orders at 
all, is whether I should hear from S. At his age and in these particular circumstances, it is a serious 
question to be addressed. At my invitation, Mr Perkins spoke to the CAFCASS High Court team today 
in the form of Angela Adams, who is a senior practitioner there. She said that there would be limited 
value in her speaking with a 5½ year old in light of the issues which arise in the case, although she 
would be prepared to give it a go if the court considered it appropriate to do so. She was clear that a 
Facetime or Skype interview would be of limited utility with a 5½ year old. She said that even a face 
to face interview would be of relatively limited value but, of course, it would put his wishes and 
feelings before the court. She said that if S was to return, they would be able to see him fairly 
quickly. 
 
    I do not consider in these circumstances that it is appropriate to ascertain his views given his age 
and his degree of maturity certainly for the purposes of interim orders. I think it will be important in 
due course when one is looking at the medium to long-term for him to be seen and for him to be 
seen with his father to assess that relationship, as well as being seen with his mother and ideally his 
sister as well to ascertain the nature of that relationship. However, for the purposes of this interim 
order, I do not consider it appropriate or necessary to establish his views. 
 
    In terms of the overall welfare evaluation necessary, it must be a summary and limited evaluation 
at this point in time. I think it is significant that obviously he has lived here for a year and has settled 
here, but equally it is significant that prior to that, he lived in Spain with his mother and his sister. His 
mother is back in Spain at the moment working, and his sister is back in Spain back at school at the 
moment. 
 
    I think plainly to further this court's assessment of what orders will be in S's medium to long-term 
welfare interests, this court needs to assess him. Even more importantly, S needs to be having 
proper contact and proper time with his father, both in compliance with s.1(2A) of the Children Act 
1989, but also in compliance with S's rights under Article 24 of the EU Charter and Article 9 of the 
United Nations Charter of Fundamental Rights which confirm that it is important for a young child to 
have a direct and regular relationship with their parents. 
 
    So, in the short-term, I consider that an order should be made which requires that S be returned 
to the jurisdiction of England and Wales, both for the twin purposes of resuming his relationship 
with his father by direct contact, including overnight contact, and in order to enable a member of 
the CAFCASS High Court team to see S after he has been with his father for contact and to assess him 
so that they can advise me at a further hearing on the medium term orders that should be made 
pending a final consideration of the no doubt by then competing applications which the mother and 
father will place before the court. 
 
    That is my judgment. I will hear further from Mr Perkins, albeit briefly, on the precise formulation 
of the contact provisions and the timing of the order. I will in due course sign an Annex II certificate 
so that an application can be made in the Spanish court to enforce this order, although I have a post-
script which is that I very much hold out the hope and implore M to engage in these proceedings and 
to bring S back so that he can be seen by CAFCASS, he can be seen by his father, so that she can 
attend the next hearing in this case before me at some point, I would imagine, later on this year. 
 
    I hope that the judgment I have just given makes it clear to both F and M that I have an entirely 
open mind about where the medium to long-term future of S lies and that his return to this 
jurisdiction, pursuant to this order, is by no means an indication that he will remain in England for his 
minority. The question of what will happen to him in the medium to long-term is a matter for this 
court to consider on another occasion and all options remain open to the court depending on the 
applications which are made and the evidence which emerges. So I very much hope M will 
voluntarily comply with this order and bring S back to England so that we can get on with the 
process of reaching a final determination over his future.