K v K

Lord Justice Thorpe:

On 19 May 2009 the President of the Family Division was faced with the difficult task of deciding what would be the decision of the Supreme Court of Spain were it considering whether the domestic law of this jurisdiction in relation to the rights of an unmarried father of two children offended against Spanish public policy.

The circumstances in which the President found himself faced with that decision are much easier to record. The parties to these proceedings are in their thirties and each independently moved from this their homeland to Spain at the end of the last century or the beginning of this. They met and set up home together. Two children were born to their relationship, PM on 15 May 2002 and NO on 7 October 2003. The relationship between the parents deteriorated and on 12 March the mother, without, I think, any notice to the father, took herself and the two children to her sister overnight and on the following day brought the children to this jurisdiction. The father issued proceedings in the local court in Fuengirola on 3 June 2008. Those proceedings have not progressed and no further reference need be made to them. Perhaps more pertinently, in September the father approached the Spanish central authority, in consequence of which an originating summons was filed in this jurisdiction on 20 November 2008 under the 1980 Hague Abduction Convention and the Brussels Regulation II bis, seeking the peremptory return of the children to Spain.

The case was listed before Munby J by chance on 28 November 2008. At that stage the mother’s defence to the originating application was restricted to a reliance on Article 13 of the Convention. But Munby J had decided the reported case of Re: JB (Child Abduction) (Rights of Custody: Spain) [2004] 1 FLR 796 on 12 September 2003. So by a remarkable feat of memory, five years later he remembered that experience and his determination that on very similar facts the father had failed to establish sufficient rights of custody under Article 3 of the Convention to succeed in a return application. Accordingly Munby J suggested that the mother’s defence might be enlarged to challenge the father’s claim to have been exercising rights of custody on 13 March 2008. The mother amended her case accordingly and her expanded defence came before King J, who considered requesting the parties to seek a declaration as to the father’s rights of custody from the relevant Spanish court pursuant to Article 15 of the