A Two-Week Holiday That Never Ended: Applying under the 1980 Hague Convention
Sofia (34), a Spanish national, married James (38), a British national, in 2015. They lived in Bristol throughout their marriage, where James lectures at a university and they own a house in joint names. The children, Mateo (6) and Lucia (3), were born in England, hold both nationalities, attend school and nursery in Bristol and speak English at home. In August, Sofia took the children to Madrid for what she told James was a two-week holiday, with return flights booked. She has not returned, has enrolled Mateo in a Spanish school, and has told James by message that she will not come back. She says James controlled all the money and called her 'useless' in front of the children, and that her mother in Madrid is unwell. James has instructed solicitors in England to apply under the 1980 Hague Convention 'in the English court'. Sofia has also begun proceedings in Madrid seeking custody and permission for the children to remain. Six weeks have passed since instructions were given and no hearing has been listed.
1. Is the English court the right forum for the Hague application? What must James establish?
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This is the first thing to correct. A Hague application is made to the authorities of the Contracting State where the children are, not the state they came from. The children are in Spain, so the application must be transmitted to the Spanish Central Authority, which will issue proceedings in Madrid. Instructing English solicitors to 'apply in the English court' achieves nothing except delay. The practical route is through the English Central Authority (the body designated under the implementing legislation) which forwards the application to its Spanish counterpart. The 1980 Convention remains in force between the UK and Spain notwithstanding the UK's departure from the EU; the EU regulation that once governed jurisdiction no longer binds the UK, and the 1996 Hague Convention on jurisdiction, applicable law, recognition and enforcement is now the relevant instrument between them.
What James must establish, on the six-week date of removal:
Habitual residence of both children in England immediately before removal. Strong: born in England, lived in Bristol all their lives, school and nursery here, family home here.
Wrongful retention - Sofia's retention in breach of James's rights of custody which he was actually exercising, or would have exercised but for the removal. Joint parental responsibility under English law gives him rights of custody.
The children were under 16.
Because the application is within a year, the settlement defence is not available to Sofia.
2. What defences can Sofia realistically run, and how should James respond?
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Article 13(1)(b): grave risk of physical or psychological harm or an intolerable situation. This is her best route but a high one. The threshold is not 'it would be better for the children to stay' and not ordinary hardship; it requires something of a different order. Evidence of domestic abuse can found the defence, particularly where the abuser would be the sole carer or where protective measures cannot be secured. Her evidence at present is verbal: money control and insults in front of the children. That is coercive behaviour and should not be dismissed, but the Spanish court will ask for police reports, medical records, witness statements, and any local authority involvement. She is living with her mother in Madrid, so she is not isolated.
Article 13(2): the child's objection. Mateo is 6. A child of that age will not ordinarily be found to have attained an age and maturity at which his views should be given weight, though the court must listen.
Article 12: settlement. Unavailable, because James moved within a year.
James's response. Do not simply deny everything. Offer undertakings or seek mirror orders: that Sofia may return with the children and live in the family home while James moves out, that he will pay maintenance and a sum for her costs, that he will not remove the children from England, and that he will not attend the home. Undertakings of this kind are exactly what the Convention contemplates and they strip the 'intolerable situation' argument of its force.
3. What should James do about the parallel Spanish custody proceedings and about contact meanwhile?
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Do not ignore Madrid. Sofia's application there is a live risk. She may obtain an order for custody and permission to remain, which would then be relied on as 'settlement' or as a change of circumstances if the Hague proceedings are delayed. James needs to be represented in Spain, to file an answer asserting that the children are habitually resident in England and that the Spanish court should stay its hand pending the return application, and to put the Convention point squarely before it. Delay is the real enemy: six weeks have already elapsed.
Contact now. Ask for interim contact immediately, in writing, and if refused apply for it in Spain. Proposals: daily video calls at a fixed time; a visit by James to Madrid within a fortnight; and, if the return order is refused, an application for contact in England in the alternative. Contact is both a welfare necessity and a tactical asset - a father who is visibly seeking contact rather than control is harder to characterise as a risk.
Keep the long-term question separate. A Hague return order is not a custody decision. It restores the status quo so that the substantive welfare question is decided in England. James should be advised that if the order is made, a contested relocation application will follow, and his conduct during the Hague proceedings will be scrutinised in it.
Financial orders. In England, seek maintenance for the children and an order for Sofia's reasonable costs of returning; these are the kind of protective measures a court expects to see offered.