ON APPEAL FROM THE HIGH COURT (FAMILY DIVISION)
Ms Justice Russell
CCR2018/23, HS18P00283, FD18P00572
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PETER JACKSON
LORD JUSTICE PHILLIPS
| E (BIIa: Recognition and Enforcement)
The Respondent Mother was unrepresented and did not attend
Mark Jarman and Lucy Logan Green (instructed by Cafcass Legal) for the Respondent Children by their Children's Guardian
Hearing date: 25 June 2020
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be at 10:30am on Tuesday, 4 August 2020.
Lord Justice Peter Jackson:
(1) Applications by the children's father to enforce orders of the Spanish Court, made in 2016 and upheld on appeal in 2018 at a time when it had general jurisdiction, granting custody to him.
(2) An application by the children's mother, made later in 2018 at a time when the English court had general jurisdiction, for an order that the children live with her.
The family and procedural history
General jurisdiction in matters of parental responsibility
"1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that member state at the time the court is seised. …"
This jurisdictional rule is explained in Recital 12 as being shaped in the light of the best interests of the child, in particular on the criterion of 'proximity'.
Recognition and enforcement
"1. A judgment given in a Member State shall be recognised in the other Member State without any special procedure being required.
3. Without prejudice to section 4 of this Chapter, any interested party may, in accordance with the procedures provided for in Section 2 of this Chapter, apply for a decision that the judgment be or not be recognised."
"The recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum required."
This is bolstered this by Article 26:
"Under no circumstances may a judgment be reviewed as to its substance."
"A judgment relating to parental responsibility shall not be recognised:
(a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child;
(b) if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought;
(c) where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence unless it is determined that such person has accepted the judgment unequivocally;
(d) on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard;
(e) if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought;
(f) if it is irreconcilable with a later judgment relating to parental responsibility given in another Member State or in the non-Member State of the habitual residence of the child provided that the later judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.
(g) if the procedure laid down in Article 56 has not been complied with."
"1. A judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.
2. However, in the United Kingdom, such a judgment shall be enforced in England and Wales, in Scotland or in Northern Ireland only when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom."
"1. The court applied to shall give its decision without delay. Neither the person against whom enforcement is sought, nor the child shall, at this stage of the proceedings, be entitled to make any submissions on the application.
2. The application may be refused only for one of the reasons specified in Articles 22, 23 and 24.
3. Under no circumstances may a judgment be reviewed as to its substance."
"The appropriate officer of the court shall without delay bring to the notice of the applicant the decision given on the application in accordance with the procedure lain down by the law of the Member State of enforcement."
1. The decision on the application for a declaration of enforceability may be appealed against by either party.
5. An appeal against a declaration of enforceability must be lodged within one month of service thereof. …"
"1. The enforcement procedure is governed by the law of the Member State of enforcement.
2. Any judgment delivered by a court of another Member State and declared to be enforceable in accordance with Section 2 or certified in accordance with Article 42(1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State.
In particular, a judgment which has been certified according to Article 41(1) or Article 41(2) cannot be enforced if it is irreconcilable with a subsequent enforceable judgement."
"(1) Any interested person may apply to the court for an order that the judgment be registered, recognised or not recognised.
(2) Except for an application under rule 31.7, an application for registration, recognition or non-recognition must be –
(a) made to a district judge of the principal registry; and
(b) in the form, and supported by the documents and the information required by a practice direction."
"Registration of a judgment under rule 31.11 will serve for the purpose of Article 21(3) of the Council Regulation, Article 24 of the 1996 Hague Convention, regulation 7 of the Jurisdiction and Recognition of Judgments Regulations or regulation 5 of the 2014 Regulations (as the case may be) as a decision that the judgment is recognised."
"(1) An appeal against the court's decision under rules 31.10, 31.11 or 31.14 must be made to a judge of the High Court –
(a) within one month of the date of the service of the notice of registration; …"
"(1) Subject to paragraph (1A), the court will not enforce a judgment registered under rule 31.11 until after –
(a) the expiration of any applicable period under rules 31.15 or 31.16; or
(b) if that period has been extended by the court, the expiration of the period so extended.
(1A) The court may enforce a judgment registered under rule 31.11 before the expiration of a period referred to in paragraph (1) where urgent enforcement of the judgment is necessary to secure the welfare of the child to whom the judgment relates."
The judge's decision
(1) At one point, Ms Jacqueline Renton, who appeared for the father below and, together with Ms Charlotte Baker, on this appeal, sought to suggest to us that the father's enforcement application was the only application before the judge. That is not so. It is clear from the five case management orders that preceded the hearing that the mother's application for domestic welfare orders was before the court as well as her appeals from the registration of the Spanish orders.
(2) Before the judge, the mother asserted that recognition should be refused under both limbs (a) and (e) of Article 23; indeed, she placed greater emphasis on the former ('recognition manifestly contrary to public policy'). On behalf of the Guardian, Mr Mark Jarman, who also appeared on this appeal, argued that both limbs were available to the court, but he placed greater emphasis on the latter. The father's case was heavily weighted towards refuting the Article 23(a) claim. Nonetheless, he did engage with Article 23(e) in his statement of 4 June 2019, in which he stated (correctly at the time) that there was no later judgment in England, before going on to assert that there could be no later judgment because "jurisdiction in respect of welfare matters rests solely in Spain". In her written opening submissions to the judge, Ms Renton put it that Article 23(e) could not apply because "enforcement applications take priority". In her written closing submissions no further reference was made to the provision, but its applicability was maintained by both the mother and the Guardian.
(3) By process of case management the disputed issues were crystallised in this way: (1) why the children had had such limited contact with their father since 2016; (2) why they had expressed different views at different stages of the proceedings; (3) whether or not the Spanish custody order should be enforced, and if so how and when; (4) the issue of children's Spanish passports and ID cards, which had been embargoed by order of the Spanish court. Reflecting this list of issues, the oral evidence was to be limited to these questions: how enforcement might take place, the mother's attitude and actions and the reasons for the difficulties with contact, the children's wishes, and whether the mother would move to Spain if the order was enforced. The confinement of the issues and the oral evidence was doubtless the result of the father's argument that his enforcement application took precedence and his having objected to the court hearing any oral evidence at all. Ms Renton's skeleton argument at the outset of the hearing put it this way:
"If the court is going to hear oral evidence, then that evidence should be carefully confined, bearing in mind the strict parameters of BIIR enforcement."
(4) Although the father formally pursued his application for the immediate transfer of both children to Spain, he acknowledged that, as A was then in the middle of her GCSE course, it might be better to leave things until after she had taken her exams in the summer of 2020 and then, as he put it, "see what she says". In the meantime, he pursued the immediate transfer of J alone, either immediately or at the end of A's exams.
(5) Before the judge, it was common ground that the dismissal of the mother's appeal in August 2018 brought the Spanish proceedings to an end. That consensus was recorded in the order of 9 April 2019. However, on this appeal Ms Renton suggested to us that the Spanish court remained seised until the last order was made by the first instance court in December 2018. I consider that the position taken by the parties and adopted by the judge was correct, but in the end it makes no difference as the English court was plainly seised throughout 2019 and since.
(6) Lastly, by the time of the judgment and order, A had turned 16. Section 9(7) of the Children Act 1989 provides that a welfare order of the kind made by the judge shall not be made in respect of a child who has reached that age unless the court is satisfied that the circumstances of the case are exceptional. The parties asked for any order to be made in relation to both children and the judge stated that she was so satisfied.
"31. The relevant law governing this case is contained in the Regulation BIIa, the Senior Courts Act 1981 and Children Act 1989 of which more below. In this judgment I shall make no attempt at a lengthy exposition nor comprehensive analysis of the law, nor is my judgment intended, in any sense, to stand counter to the previous judgments of the Court referred to above. This judgement is made on the facts before it in respect of these particular young people. The principal fact is this; on any objective and neutral analysis both children are habitually resident in England. They have lived here since 2013, are settled here and fully integrated into their school and education as well as in their peer group and social environment; there is no evidence before this Court which could be said to amount to anything of substance contrary to such a finding. Wherever the proceedings concerning them both commenced or was initiated they have been living with their mother in England for an uninterrupted period exceeding six years. They have never been in their father's sole care nor has he ever cared for them alone for any substantial period of time.
32. Secondly, as far as the evidence before this Court is concerned, both A and J want to remain living in the England and both have been equally consistent in expressing this to be their wish, to this Court, over a period of years. I make no attempt to analyse what occurred during the proceedings in Spain nor to go behind it, but I am bound to reach any decision I make on the evidence before this Court which, in turn, is based on the independent analysis of their guardian Ms Roddy from whom I heard oral evidence; evidence which, under cross-examination, remained as she had set out in her written analysis."
"59. As the Spanish court has made final orders it must follow that jurisdiction falls to be considered pursuant to Art 8 BIIa; on the basis of the children's habitual residence, which is England, as a consequence of which this court has jurisdiction, pursuant to Art 17 [sc. 16] BIIA. This is by virtue of the fact that M's application for child arrangements orders and Prohibited Steps Orders were issued for the first in time in October 2018, subsequent to the conclusion of the Spanish proceedings. F himself reapplied for orders in March 2019; although his original application was made in October 2016 it was stayed by order of Mr Justice Holman on 28 November 2018.
60. In July 2018, when the Spanish appellate process ended, the Spanish proceedings had concluded as accepted by F. It was submitted on behalf of A and J that as a matter of fact there are no "concurrent" proceedings and therefore it must also follow that there can be no argument as to which court is currently seized; it is this court. There are no proceedings currently in Spain, nor have there been since July 2018 well over a year ago at the time of trial. There are extant Children Act 1989 proceedings before this court. In addition based on Recital 12 of the 2003 Regulation which provides "The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, [my emphasis] in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child's habitual residence, except for certain cases of a change in the child's residence or pursuant to an agreement between the holders of parental responsibility"
61. It is hard to see any other logical conclusion based on their habitual residence and proximity other than that this court has jurisdiction and that the best interests of A and J are best served, as recommended by their guardian, by remaining living with their mother in England. Any order made in an English and/or Welsh court now would be an "a later judgment" for the purposes of Art 23 (e) and any order based on the best interests of A and J as set out above in the evidence of their guardian "irreconcilable" with the Spanish order. The evidence of this experienced guardian is accepted by this court as self-evidently congruent with the views of A and J and their welfare. Art 23(e) reads "e) if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought." Jurisdiction is with and in this court as a result of the conclusion of the proceedings in Spain, the subsequent commencement of Children Act 1989 proceedings in this jurisdiction and the children's habitual residence in England.
62. M's appeal against enforcement is allowed pursuant to Art 23 (e).
63. Exceptionally, given AB's age there will be s8 CA 1989 child arrangement orders in line with the guardian's recommendations; that A and J live with their mother, M; A and J are to have contact, or spend time, with their father, F in England and Spain, at dates and times to be agreed, no less than 3 months in advance (and in default the first half of all school holidays is to be spent with F) during the children's school holidays, subject to F providing written permission to renew the children's passports immediately and providing satisfactory documentary evidence that all criminal complaints against the M in Spain has been withdrawn and the order dated 14th December 2018 has been discharged. Following any contact or time spent with their paternal family in Spain, F must ensure that A and J are returned to the jurisdiction of England and Wales."
Analysis: Article 23(e)
(1) Whether the court, faced with an enforcement application and a welfare application, was obliged to prioritise the former and stay the latter so that the non-recognition provision of Article 23(e) could not be engaged unless and until recognition and enforcement was refused for some other reason; and
(2) If the court had no obligation to prioritise, how it should have approached the two applications.
"(e) if it is irreconcilable with a later judgment relating to parental responsibility given before the application for recognition is made in the Member State in which recognition is sought;"
"72. … Finally, points (e) and (f) deal with non-recognition on grounds of irreconcilability with another judgment and lay down different rules, depending on whether the judgment is given in the Member State in which recognition is sought or in another Member State or in the non-Member State of the habitual residence of the child. Solely with regard to parental responsibility, the judgment with which the judgment for which recognition is sought is irreconcilable must have been given later since earlier judgments will have been taken into account in the judgment connected with the divorce. The objective is to prevent the contradiction which could result, for instance, between a judgment given in another Member State regarding divorce and custody and a judgment given in the forum denying paternity. The commentary on Article 3(3) also needs to be taken into account in this connection (end of jurisdiction of the court hearing the matrimonial proceedings in matters of parental responsibility)."
There is no suggestion here that the provision is linked to the filing of the enforcement application. Further, and of direct relevance, when commenting on Article 18 of the 1968 Brussels Convention (the equivalent of Article 26 BIIa), Dr Borrás writes (emphasis added):
"77. This is the classic prohibition on review as to substance at the time of recognition or enforcement. The same provision appears in Article 29 of the 1968 Brussels Convention and in other Conventions on enforcement. It is a necessary rule in Conventions of this kind in order not to subvert the meaning of the exequatur procedure, which does not mean allowing the court in the State in which recognition is sought to rule again on the ruling made by the court in the State of origin.
78. The inclusion of this rule in this Convention led to some reluctance by certain delegations in so far as it could mean making the measures adopted in connection with parental responsibility immovable. The object of the provision is to prevent the measures from being reviewed in the exequatur procedure, although it may in no case lead to their being set in stone. The basic principle is that the Member State in which recognition is sought may not review the original judgment, which is the logical consequence of a double Convention. However, a change in circumstances may lead to a need for revision of the protective measures, as always happens when we are dealing with situations which, despite having a degree of permanence in time, may need modification. In that sense, for instance, Article 27 of the 1996 Hague Convention makes it clear that the prohibition on review as to substance does not prevent such review as is necessary of the protective measures adopted. In this case too, the provision in this Article must be understood as being without prejudice to the adoption by the competent authority of a new ruling on parental responsibility when a change in circumstances occurs at a later stage."
This commentary therefore draws a clear distinction between "ruling again on the ruling made in the State of origin" during the enforcement process, which is prohibited, and "a new ruling on parental responsibility when a change in circumstances occurs at a later stage", which is permitted.
The effect of a change of habitual residence
BIIa, Art 21(1) obliges a Member State to recognise a judgment relating to parental responsibility (even those not involving cross-border issues) given in other Member States. Recognition is automatic by operation of law and the order remains valid notwithstanding a change in the habitual residence of the child. However, when a child's habitual residence changes, jurisdiction will shift to the new state of habitual residence and that court will, if seised of an application concerning the child, have a theoretically unfettered discretion to make orders under domestic law. However the court in such a case is bound to recognise an existing order and, in the same way as it would not disregard an earlier order made by another domestic court, it must recognise an order made by another Member State. However, in appropriate cases it can make an order which makes different provisions to those made by the earlier order although it cannot 'vary' the order itself. It should only do so (as it would in a purely domestic case) where there has been a change in circumstances which warrant making different provision1. To do otherwise would permit the English court to act differently in an EU case as compared to a domestic case. If it does make different provision, the earlier order will not be susceptible to registration and enforcement, and there will exist a ground for non-recognition under Art 23(e). As yet there is no reported authority on whether the English court can, whilst considering a registration/enforcement application, exercise its own substantive jurisdiction to make a different and conflicting order. The decision of the Court of Justice of the European Union in Re P 2 which appears to say that a court with jurisdiction can only refuse to recognise the order of another Member State which had jurisdiction on manifest incompatibility grounds needs to be viewed in the context of two competing but concurrent jurisdictions being exercised. The proper application of BIIa should avoid this arising and the Court of Justice of the European Union noted in that case that the correct remedy in the second seised (but probably legitimate) court of jurisdiction was not non-recognition, but the taking of the steps provided by BIIa to ensure the correct court of jurisdiction was identified.
1 See Borras Report … at para 78.
2 (Case C-455/15 PPU) EU:C:2015:763  1 FLR 337.
Non-review of jurisdiction and substance
The courts in which recognition is sought are forbidden under Art 24 to review the jurisdiction of the court of origin1. As to the inter-relationship of Art 24 and public policy as a ground of refusal, see Re S (Brussels II: recognition: best interests of child)2. Under no circumstances may a judgment be reviewed as to its substance. As to the similar article in Brussels I, see Interdesco SA v Nullfire3. However, this does not prevent a court with jurisdiction making a new order when a change in circumstances occurs at a later stage.
1 Purrucker v Vallés Pérez (No 2) Case C-296/10  1 FLR 925.
2  EWHC 2115 (Fam),  1 FLR 571.
3  1 Lloyd's Rep 180.
The rights of the child
1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration.
3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.
The importance attached to the views and best interests of children speaks against any interpretation of BIIa that might marginalise these factors.
" There is no question but that a prohibited steps order, residence order or making L a ward of court would make the Portuguese order irreconcilable and, therefore, justify non-recognition (Art 23(e)). This is obviously dependent upon the court having jurisdiction to do so. Assuming for the point of this argument, that I do (and as I indicate below I determine that I do have jurisdiction) my obvious disinclination to this step made clear during the course of argument arises from the proximity in time of the Portuguese order and the inevitable and implicit review of the substance of the judgment to justify the fresh application. I cannot conceive that the aim of BIIR should be able to be thwarted so readily in such circumstances in the absence of other grounds not to recognise and enforce. I accept Mr Armstrong characterisation of such an exercise as having 'logic [which] is demonstrably unreliable'."
This paragraph represents the sum total of existing English case law on Article 23(e). Ms Renton relied upon it to bolster her argument, but in my view it is difficult to gain much from the decision, because the judge instead found that the Portuguese order should not be recognised on the public policy ground and went on to make orders that were in fact irreconcilable. Her conclusions on habitual residence and Article 23(a) were then overturned on appeal: Re L (Brussels II Revised: Appeal)  EWCA Civ 1157;  1 FLR 430. The decision is in my view no more than an instance of the court finding that it had a power but declining to use it for the purpose of setting up a ground for non-recognition.
(1) Does the court have the power to make welfare orders on the basis that (a) the child is habitually resident in England and Wales or general jurisdiction arises on some other basis, and (b) the court of the other Member State is no longer seised?
(2) If there is a power to make welfare orders, to what extent is it appropriate on the facts of the individual case to embark upon a welfare assessment of matters that were decided by the court of the other Member State, taking an earlier domestic order as an analogy?
(3) If a welfare assessment is to be carried out, how can it be case managed to ensure that the issues for decision are clearly set out and that the requirement to determine an enforcement application without delay is observed?
(4) If the welfare assessment suggests that an order might be made that is irreconcilable with a foreign order, would it be right to make such an order, taking a cautious approach and giving full weight to the conclusions and findings of the foreign court and to the principle of mutual trust that informs BIIa?
I leave aside the possibility, irrelevant to this analysis, of the court exercising its power under Article 20 to take urgent provisional measures.
Determination of the appeal
"(3) The appeal court will allow an appeal where the decision of the lower court was—
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court."
(1) It is true that the judge, as she herself said, did not undertake an extensive legal analysis, but that essentially reflected the very brief submissions that were addressed to her on the scope of Article 23(e). For all that, she was in my view right to find that she had the power to make welfare orders on the basis that the children were habitually resident in England and Wales and that the Spanish court was no longer seised. She was also right not to accept the father's argument that the recognition and enforcement proceedings should take priority. These conclusions dispose of the first ground of appeal.
(2) In embarking upon a welfare assessment, the judge did not ask herself whether and to what extent that was appropriate in the light of the extensive Spanish proceedings and the Spanish custody order, which had to be recognised unless the appeal succeeded. I am nevertheless satisfied that on the facts of this case (by which I mean the age and wishes of the children, the length of their habitual residence in this country and the length of time since the most recent Spanish orders) it was open to the court to entertain and investigate the mother's application.
(3) Unfortunately, the way in which the court intended to address the applications before it was not set out with clarity. No doubt due in part to the nature of the father's submissions, the fact that mother was unrepresented, and the lack of any precedent, the hearing was an uneasy compromise between an enforcement process and a welfare assessment. Properly understood, there was nothing to prevent the judge from hearing focused evidence on all relevant aspects of the children's welfare alongside the enforcement application. Further, the length of the proceedings far exceeded what was appropriate in the circumstances and took insufficient account of the obligation under Article 31 to determine enforcement applications without delay, particularly bearing in mind the length of time that had already passed as a result of the mother's Spanish appeal.
(4) The judge rightly refrained from carrying out a review as to the substance of the Spanish orders. Such a review, as described by Dr Borrás, would mean ruling again on the ruling of the Spanish court. However, once the court had decided to carry out a welfare assessment, it was engaged in a different exercise altogether, and one that involved taking the Spanish judgments into consideration so that the court had the whole picture. The judge's treatment of this issue at paragraph 31 supports the submission that the Spanish judgments were ignored, but it is clear from her extensive reference to them in her account of the background history that she was well aware of their contents. The result is that her analysis lacks an element in which the Spanish judgments are explicitly considered as part of the overall welfare assessment, and in which her decision to depart from them, notwithstanding considerations of comity, is explained.
(1) As Mr Jarman submits, the judge was ultimately faced with a stark choice in this procedurally difficult case. Although I have expressed some reservations about her approach to the welfare assessment (see paragraph 76(2)-(4) above), I am not persuaded that her ultimate decision was wrong. It was a defensible welfare analysis and any shortcomings were in my view matters of form and not of substance. It is clear from the judgment as a whole that, had the judge followed the fuller process of reasoning, she would undoubtedly have reached the same conclusion.
(2) The judge identified the principal facts as being the length of time the children had been in England, their ages and their strong wishes to remain living here. On any view, these were factors of magnetic and almost certainly decisive importance that were bound to dominate any welfare assessment, however it was carried out. When the mother and children came back to England in 2013, A was returning to a country where she had already lived for six years; in J's case he has lived here for all but two of his thirteen years. The judge found that the children are settled and fully integrated into their schooling and peer group and social environment. She noted that the children had been telling their Guardian since January 2017 that they emphatically do not want to live in Spain, that they are exasperated that their wishes are not heeded and distressed that it is now being proposed that they should be separated. The range of realistic options for these children, already so narrow, was further sharply reduced by the father's realistic acceptance that compelling A to move to Spain was not in her interests. The Guardian's advice that separation of the children against their wishes could not be contemplated was evidence that the judge was entitled to find compelling. Against this background, nothing has been said on this appeal to plausibly suggest that a wider welfare survey could have led to any different outcome. Any procedural irregularity, whether or not it is described as serious, has not led to injustice.
(3) In any case, the Spanish court had not at any stage contemplated separation of the children and the father was therefore seeking to enforce an entirely different type of order. Although it does not arise for formal decision on this appeal and I do not rely on it for my overall conclusions, it is not in my view open to the father to choose to pursue partial enforcement in this way. At the very least it amounts to a significant change in circumstances since the Spanish orders.
(4) The order for the children to spend substantial time with their father is plainly in their interests and should be capable of being put into effect if he takes the necessary steps to ensure that the children can go to Spain and return reliably. We were told that this has not yet happened, but it is to be hoped that it will be done for the children's sake now that this appeal has been decided.
Lord Justice Phillips
Lord Justice Moylan