P-J (Children), Re

Lord Justice Ward:

Introduction

The respondent and the applicant are husband and wife having married on 20th May 1995 in Spain. The respondent is a Spanish national serving as an officer in the Spanish army. The mother is Welsh. She is a school teacher. They have five children, S who will be 13 in a few weeks time, J now aged 11, T who is 9, E aged 6 and D who is 4 years old. On 27th March 2009 Sir Mark Potter, the President of the Family Division, ordered that the mother should forthwith return or cause the return of the children to the jurisdiction of Spain, that order not to be enforced by way of a tipstaff collection order or otherwise until after Saturday 11th April 2009. That was Easter Saturday and so this court sat as a matter of urgency on Maundy Thursday to hear the mother’s application for permission to appeal the President’s order which Wall L.J. directed be heard on notice to the respondents with the appeal to follow if permission is granted. S is the second respondent, the CAFCASS officer having been appointed her guardian ad litem. Having heard full argument, we granted permission to appeal, but dismissed it for reasons we would give in writing. These are my reasons for arriving at that conclusion.

The background

Until recent times the family unquestionably lived in Spain. The marriage may not have been an auspiciously happy one –so far as the mother at least was concerned, it had its difficulties and it has probably now irretrievably broken down. The President was not in a position to make findings, nor was it necessary for him to do so, in relation to the individual allegations of misconduct made by the mother against the father, but he was able to say “with confidence”, that “the precipitating factor for her wish to escape the marriage and her fears for the future are based less on any incidents of violence which may have occurred than upon the father’s controlling nature, volatility, and his refusal to take medical or counselling advice in respect of his bad temper despite promises in the past to do so”.

The crucial issue in dispute was where the children were habitually resident, in Spain or in Wales. It is common ground that the family home was in Spain. Then on 23rd August 2007 father drove whole family to the maternal grandmother’s home in Wales, father returning alone to Spain about a week later. Thus it was not in dispute that until this move the parties and the children were all living together and habitually resident in Spai