The High Court dismissed a British mother's application to have her child returned to her from Spanish care, ruling that it lacked jurisdiction while emphasising that the child's habitual residence was in Spain and noting the mother's substantive concealment of the relevant history.
Background:
MB, a British citizen, gave birth to her daughter, CB, in Spain in October 2024. At five weeks old, following a British passport application, CB was removed from her parents' care by Andalusian child protection authorities and remains in their care.
MB, acting as a litigant in person, urgently applied to the Family Division of the High Court on 1 December 2024, seeking orders for CB to be made a ward of court and immediately returned to England, naming "The Spanish Authorities" as respondents. MB's conduct significantly hampered the Court's proceedings. Given her previous history of having no fewer than six other children removed from her care, some of whom were subsequently adopted, she had also given birth to a previous child in Spain, who was also taken into care and adopted, and had concealed this history from the Court.
FB is also a British citizen and the father of MB's fourth, fifth, and sixth children, as well as CB. MB falsely claimed that she was in Spain on holiday when CB was born prematurely. However, evidence later revealed that she had planned CB's birth in Spain to avoid English children's services, despite having no grasp of the Spanish language or family in the country. She also provided a false address in London.
The Spanish authorities, as the first respondent, had initially engaged remotely and were open to transferring CB to an English Local Authority. However, shortly before the final hearing, their position changed. They communicated to the Court that "opposition proceedings" had been issued by the biological parents in Spain, and a hearing was planned for the early autumn. Moreover, the Spanish authorities were fully aware of the parents' history, concluding a "zero prognosis for family recovery," and planning for CB's adoption. Contact between CB and her biological parents had been terminated to facilitate bonding with her future adoptive family. The
Spanish authorities asserted that CB's habitual residence was in Spain and that transferring jurisdiction would cause undue delay, which would be harmful to her well-being.
Decision:
The High Court concluded that it does not have jurisdiction under the 1996 Hague Convention or the Family Law Act (FLA) 1986 to make the orders sought and refused to exercise its parens patriae jurisdiction in respect of CB.
The crucial first step was determining CB's habitual residence. Mr. Justice Poole considered extensive case law on the concept, including A v A [2014] and M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) [2020]. Noting the established principle that habitual residence is a question of fact, reflecting a "degree of integration by the child in a social and family environment," the Judge ruled that a child cannot be habitually resident in a country in which they have never been present. In this case, CB has never been present in England and has always lived in Spain. Thus CB had no integration into an English family or social environment. She was, "insofar as a newborn infant can be, integrated into the social and family environment in Spain".
Since CB was habitually resident in Spain, any potential transfer of jurisdiction to England and Wales would fall under Article 9 of the 1996 Hague Convention. This Article allows for a request to the Spanish authorities to authorise the English authorities to take child protection measures if England considers itself "better placed… to assess the child's best interests". Mr. Justice Poole unhesitatingly concluded that the Spanish authorities were better placed to assess CB's best interests, as she had been in care in Spain since birth.
Regarding the inherent parens patriae jurisdiction, which allows the High Court to act for British citizens regardless of their habitual residence, Mr. Justice Poole found it inappropriate to exercise parens patriae in this case. While CB is a British citizen, such jurisdiction should only be exercised under "sufficiently compelling circumstances" such as those that require the Court's protection. He stated that it would be "unprecedented" to exercise this jurisdiction for a child in a Hague Convention country where state authorities are already providing protection.
Implications:
This case reinforces the "immutable rule" that a child cannot acquire habitual residence in a country where they have never been present. This is an important consideration for those parents who might consider giving birth abroad or who have children abroad, as there is a clear hurdle to pass. Simply intending to return to the UK or having British nationality will not confer habitual residence if the child has never physically been there. While the parens patriae jurisdiction is broad and linked to nationality, this judgement clarifies its limited practical application when a child inhabits a signatory state to the 1996 Hague Convention. Thus, it will only be exercised under "sufficiently compelling circumstances," whereupon a child genuinely needs the English Court's protection.
This decision highlights the paramount importance of absolute honesty and full disclosure in Family Court proceedings. Any failure to disclose material facts can lead to the dismissal of urgent applications, potential adverse costs orders, and severe damage to the client’s credibility.
