England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/05/2009

Sir Mark Potter P:

Introduction

1. This is the trial of a preliminary issue pursuant to the order of Mrs Justice Eleanor King dated 2 February 2009 in Convention proceedings brought by the plaintiff father pursuant to the Child Abduction and Custody Act 1985 and Council Regulation (EC) No. 2201/2003 of 27 November 2003 ("B II R"), following the removal of his two children from Spain by their mother at a time when the parents were living together. The issue for determination is whether or not the father at the time of the removal had "rights of custody" for the purposes of Articles 3 and 5 of the Hague Convention.
2. Prior to making her order, because the issue appeared far from straightforward, King J explored the idea of referring the issue to the Spanish Courts pursuant to Article 15 of the Hague Convention. However, practical obstacles led her to direct that the determination of the issue should be carried out by the English Court and in this respect the Court is dependent upon the evidence of two experts in Spanish law, Sr Alberto Perez Cedillo (Sr Cedillo) for the plaintiff father and Sr Javier Iglesias – Munoz (Sr Munoz) for the defendant mother. The issue arises in this way.

Background

3. The father and mother are both of British nationality and hold British passports. They never married. The children, P (now aged 7) and N (now aged 5) were born in Spain where the parties were habitually resident. The parties lived together but never married, and it is not in dispute that the father does not have parental responsibility under English law. The births of both children were registered in Spain by both parents and Spanish birth certificates were obtained. The children were habitually resident in Spain, having always lived there until their removal to England by their mother on or about 12 March 2008.
4. Three months after the mother's departure, the father commenced an application in the Spanish Court on 12 June 2008, seeking guardianship, custody and access measures in respect of the children. However, those proceedings have not progressed since.
5. On 20^th November 2008 the father issued his originating summons, which included an application for summary return under the Hague Convention. On 27 November 2008, the mother filed a defence raising an objection to return under Article 13b of the Hague Convention, namely that if the children were returned to Spain there would be grave risk that their return would expose them to physical or psychological harm or that they would otherwise be placed in an intolerable situation.
6. On 28 November 2008, when the matter came before Munby J for directions, he raised the question whether or not the children had been removed in breach of the fathers "rights of custody" as provided by Article 3 of the Convention: c.f., Re JB (Child Abduction) Rights of Custody: Spain) [2004] 1FLR 796, a previous decision of Munby J. In that case (as in this case) it was not in dispute that the father was indeed the child's father and the paternal relationship between father and child had been legally established in Spain by the process of 'filiacion' before the mother removed the child to England. The court received evidence of Spanish law, undisputed as between the two experts in that case, to the effect that the plaintiff father's rights in relation to his son, were, as a matter of Spanish law, governed by the personal law of the child and that, since the child was a UK national, the law of the child was the law of England and Wales. That being so, in English law the father had no parental responsibility for the child and so did not enjoy rights of custody within Article 3 of the Convention see (Re B (Abduction)) (Rights of Custody) [1997] 2FLR 594 and Re C (Child abduction) (Unmarried Father: Rights of Custody) [2003] 1 FLR 252; see also Re W; Re B (Child abduction: Unmarried Father) [1998] 2 FLR 146.)
7. On 16 December 2008 Sr Munoz for the mother produced a report stating that, under Spanish law, the national law of the child governs all questions relating to the rights and duties of parents towards their children; that on that basis English law was to be applied to the issue whether or not the father had rights of custody over his child; and, that being so, the father lacked custody rights over the child at the time of his removal.
8. On 17^th December 2008, the date listed for a final hearing, the matter was adjourned and directions given to enable the father to instruct his own expert to report on the issue of rights of custody. The father duly obtained a report from Sr Cedillo who had in fact been the expert witness for the successful mother in Re JB.
9. In reporting for the father in this case, Sr Cedillo took a point which had not been raised by either side before Munby J, namely that:

"24…If as a result of applying the Spanish Rule of Conflict the applicable law is not Spanish law as it occurs in this case, it is pertinent to consider the possibility of making an exception of public policy to the applicability of foreign law in matters that affect filiation. The applicability of English law in this case could be considered against Spanish public policy in that it challenges the equality of rights between matrimonial and non-matrimonial children, which equality has been duly recognised by the Spanish Constitution (Article 39). When foreign law cannot be applicable for reasons of public policy Spanish law becomes applicable by the Spanish courts.

25. As far as I am aware, this exception of public policy based on the equality of rights between matrimonial and non-matrimonial children has not been tested by a Spanish court".

10. On 21 January, the date then fixed for the final hearing, it was agreed between the parties that, given the difficulty involved in an English court seeking to interpret Spanish law in relation to an issue of Spanish public policy, there should be an attempt to take advantage of the mechanism provided under Article 15 of the Convention to obtain a decision of the Spanish court upon the issue whether or not the removal of the child was wrongful in the sense that it was in breach of the father's custody rights.
11. Subsequent contact with the Spanish Liaison Judge through the International Family Law office of Thorpe L.J. in order to obtain information as to the procedure and time scales should an Article 15 referral be made, elicited an indication that the case would be heard by a first instance court on a time scale which was unpredictable and that any subsequent appeal would be likely to take a minimum 6-9 months following a decision at first instance. Further, because of lack of any specific procedure in Spain for dealing with a referral under Article 15, the matter could only be considered in the context of a custody contact hearing taking place in Spain against the back-drop of a full welfare investigation. That is something which (although the father issued a "chasing" application for the custody of the children 3 months after the mother's removal of them from Spain) is not sought by either party at present. In those circumstances, King J made her decision that an Article 15 referral would not be practicable within the appropriate time scales for the children.
12. I do not criticise King J. in any way for taking the course which she did. She was right to do so, having regard to the need for urgency in the disposition of proceedings of this kind. Indeed, the benchmark is the requirement in B II R that the matter be disposed of within six weeks from commencement of proceedings, a target at which this Court aims, but on occasion finds difficulty in achieving, not simply because of the crowded lists in the Family Division but because of the practical and legal complications which arise from time to time in individual cases, which the summary nature of the procedure is ill-equipped to resolve. This case affords such an example.
13. I record nonetheless that I consider it a thoroughly unsatisfactory state of affairs that I, as an English Judge, should be required to rule upon a question involving the application of Spanish public policy in relation to the rights of the parties, not least because (as will appear below) the issue which arises has not been considered, or at any rate referred to, in any decision of the Spanish Courts which the experts have been able to place before me. It appears that in Spain the only court whose decisions are binding in other cases is the Supreme Court. The decisions of lower courts may be cited in other courts but are not binding upon them. In these circumstances, it is necessary for me to answer the question, not simply upon the basis of what a lower or regional court might decide if faced with the question at first instance in the course of a custody and contact hearing, but by asking myself what is the law on the matter in question which would be expounded by the Supreme Court of Spain if the matter were before it. I can only echo the words of Wynn-Parry J in Re Duke of Wellington; Glentnar v Wellington [1947] 1 Ch 506 at 515 when he said, in relation to a question of renvoi:

"… The task of an English Judge, who is faced with the duty of finding as a fact what is the relevant foreign law, in a case involving the application of foreign law, as it would be expounded in the foreign court, for that purpose notionally sitting in that court, is frequently a hard on; but it would be difficult to imagine a harder task that that which faces me, namely, by expounding for the first time either in this country or in Spain the relevant law of Spain as it would be expounded by the Supreme Court of Spain, which up to the present time has made no pronouncement on the subject …"

14. Wynn-Parry J went on to observe that he had the additional difficulty of:

"… having to base that exposition on evidence which satisfies me that on this subject there exists a profound cleavage of legal opinion in Spain, and two conflicting decisions of courts of inferior jurisdiction."

Fortunately, I have not been faced with such conflict in this case. Albeit the opposing experts have expressed firm contrary views before me, it does not appear to me on such case materials and authoritative academic commentaries as they have marshalled before me, that there is any "profound cleavage" of legal opinion in Spain among the commentators to whose texts I have been referred, nor in the decisions of the courts which have been adduced. The court decisions, on the face of them, do not address the issue which I have to decide and the views of the commentators are but shortly stated in general terms. I thus have scant material before me but must do my best with what I have.

Spanish Law

15. The relevant provisions of the Spanish Civil Code to which I have been referred by the experts are (in the words of the translation with which I have been provided) as follows.
16. Article 9.1 of the Spanish Civil Code ("SCC") provides:

"The personal law of an individual is the law determined by their nationality…"

17. SCC Article 9.4 provides:

"The character and content of filiation including adoption and parent – child relations shall be governed by the personal law of the child but, if this cannot be determined, they shall be governed by the law of the place of habitual residence of the child."

18. In relation to conflict of laws, SCC Article 12 provides:

"1. The qualification to determine the applicable standard of conflict will always be made in accordance with Spanish law.

2. The remission to foreign law will be understood to be carried out to its material law, without taking into account the referral which its standards of conflict may make to another law that is not Spanish.

3. The foreign law shall not be applicable in any event if it is contrary to public policy.

…

The courts and authorities will of their own motion apply the standards of conflict of Spanish law."

19. So far as the relations between parent and child are concerned SCC Articles 110-111 provide:

"110. The father and the mother, even if they do not hold parental authority, are obliged to supervise their minor children and provide them with maintenance.

111. The parent will be excluded from parental authority and other protective functions and will not hold rights by ministry of the law with regard to the child or his or her descendants or in his heirs:

1. When he has been sentenced due to a cause of the relations to which generation obeys (sic), according to a firm penal sentence.

2. The association has been judicially determined against his opposition.

In both suppositions, the parent will not hold the surname of the parent in question unless he or his legal representative requests it himself…

The obligation to supervise the children and provide them with maintenance will always remain unchanged.

20. So far as filiation is concerned, SCC Article 112 provides:

"Filiation produces effects from the moment it takes place. Its legal determination produces retroactive effects.

21. For a married father filiation is determined by simple registration of paternity coupled with the legal presumption that, as the husband of the mother, he is indeed the father of the child.
22. However, so far as unmarried parents are concerned greater formality is required, SCC Article 120 provides:

"Filiation in respect of unmarried parents will be determined legally:

1. By recognition before a representative of the Civil Registry, by will or by other public document.

2. By resolution handed down by procedure pursuant but in accordance with civil registry, by will or by other public document.

3. By a definitive court judgment."

In this case the parties together obtained recognition of their status by recognition at the Civil Registry under 1.

23. So far as the effects of filiation are concerned, SCC Article 154 provides:

"Children who have not yet come of age are under the authority of their parents. Parental authority will always be exercised to the benefit of the children in accordance with their personality, and includes the following duties and facilities:

i) To supervise them, keep them company, feed them, educate them and provide them with a full upbringing.

ii) To represent them and administer their property. In the exertion of their power, parents will be able to request the Authorities' assistance. They will also be allowed to correct their children reasonably and moderately."

24. SCC Article 156 provides as follows:

i) "Parental authority will be exercised jointly by both parents or by only one of them with the express or tacit consent of the other…If the parents live apart, parental authority will be exercised by the parent with whom the child lives. However the Judge, at the justified request of the other parent, may, in the interests of the child, attribute parental authority to the applicant so that he or she can exercise it jointly with the other parent and attribute between the father and the mother functions inherent in its exercise."

25. SCC Article 170 provides as follows:

"The father or mother may be wholly or partially deprived of their authority due to a sentence based on their failure to fulfil the duties inherent therein, or dictated in a criminal or matrimonial cause.

The Courts may, to the benefit of or in the interest of the child, grant the recovery of parental authority once the cause that justified its deprivation has ceased."

26. Article 39.2 of the Spanish Constitution provides that:

"The public powers shall also guarantee the integral protection of children, who are equal before the law, independently of their filiation, and of mothers, regardless of their marital status. The law shall provide for the investigation of paternity"

The evidence of the experts

27. The expert evidence before me consists of three reports from Sr Munoz dated 16 December 2008, 9 January 2009 and 30 January 2009 and two reports from Sr Cedillo dated 9 January 2009 and 4 March 2009. Each expert also gave written replies to questions administered by the parties and together prepared a joint report dated 13 March 2009 setting out the extent of the disagreement between them.
28. Analysis of the content of the experts' reports, written answers and oral evidence reveal the following areas of agreement and, in so far as there may be shades of disagreement, I find as follows.
29. "Filiacion", to which I refer in anglicised form as "filiation", is the Spanish legal term which refers to the relationship between a father or mother and their child. Its equivalent in English law is "parenthood" i.e. paternity and maternity. It is a matter of status. Once formally established, (in the case of unmarried parents by the means provided for in SCC Article 120), it automatically confers "Patria Potestad" (Parental Authority) in Spanish law which is the equivalent to Parental Responsibility (PR) in English law. Rights of guardianship and custody are elements of PR in Spanish law as they are in English law.
30. The European Convention for the Protection of Human Rights and Freedoms (ECHR) is applicable in Spain and the Spanish Constitutional Court, having declared the jurisdiction of the European Court of Human Rights (The European Court) to be applicable for the interpretation of provisions in the constitution relating to Human rights and freedoms, interprets those rights and freedoms in accordance with the ECHR and the jurisprudence of the European Court. The domestic courts in Spain will in turn apply the jurisprudence of the Spanish Constitutional Court.
31. By virtue of SCC Articles 9.1 and Articles 9.4, the law governing the character and content of filiation and parent – child relations is the law of the children's nationality.
32. In this respect the experts are agreed that the relevant principles of Spanish law are correctly set out in the following translated extract of text from a leading legal commentary: (Derecho de Familia Internacional: Chapter V. Filiation Natural; J Carascosa Gonzales):

"22. (b) Parent-Child Relations: parental authority.

The National Law of the child governs all the duties and faculties of the parents towards their children, known in Spanish Law as "Parental Authority" (In potestate Nostra Sunt Liberi Nostri, quos ex Justis Nuptiis Preocreavimus), and all of its juridical regime (STS of 13 May 1988, RDGRN of 8 January 1991), as well as the duties of the children towards their parents. Therefore the National Law of the child governs the personal and patrimonial juridical relations between parents and children. In fact, the National Law of the child determines the following.

(1).The Juridical Regime of Parental Authority. The National Law of the child determines who holds parental authority, the faculties and duties inherent in parental authority, the means of its exercise, deprivation and extinction of parental authority, its extension and recovery, the legal representation of the child (RDGRN of 23 January 1992, RDGRN of 29 April 1992, RDGRN [4] of 21 September 1996 and STS of 10 October 1994) and the important matter of stating to which spouse and in which circumstances it must be decided where the domicile of the minor must be located, and if he can be transferred to another country, whether permanently, in transit or temporarily (see for Spain: Article 156 of the Civil Code…"

33. The children in this case are British by nationality and, subject to what follows, it is therefore English Law which governs questions of parental authority and responsibility, including rights of custody.
34. So far as the application of Spanish Public Policy to negate the national law of the child is concerned, the categories of protection afforded are set out in a further extract from the agreed text as follows (bracketed references are to leading legal texts):

"23. International Public Order.

Spanish Public Order would avoid the application of foreign Laws in these cases.

(1) Foreign Laws that allow excessively severe correction measures or measures contrary to the principle of equality (J.D. Gonzales Campos, S. Alvarez Gonzales).

(2) Foreign Laws that arbitrarily deprive the father or mother of parental control and the right to relate with the child (P.Mayer) and Laws that attribute guardianship and custody without taking into account the interests of the minor (S.Alvarez Gonzales).

[The experts are agreed that the "interests" referred to are the welfare interests of the minor]

(3) Foreign Laws that allow the parents to "relinquish" parental authority or assign it in favour of third parties, as takes place in Algeria, Ecuadorian and Dominican Republic Law…

(4) Foreign Laws that indiscriminately attribute the most significant facilities deriving from parental control to one spouse only." (Emphasis added)

35. The experts are agreed that the relevant category for consideration in this case is category (2) as set out in the above extract. Sr Cedillo has also argued that the effect of applying English law would allow a measure contrary to the principle of equality between the children of married and unmarried parents: see category (1). No submissions have been addressed to categories (3) or (4).
36. Thus, subject to the provision of SCC Article 12.3 (pursuant to which the Spanish courts would refuse to apply English law if it would be contrary to Spanish public policy to do so) the question whether or not the father had rights of custody at the time of the children's removal would be decided by a Spanish court according to English law.
37. Under English Law, in order for an unmarried father to acquire PR, s.4 of the Children Act 1989 (amended by s.111 of the Adoption and Children Act 2002 as from 1 December 2003) requires that the unmarried father should (a) have been registered as the father of the child in accordance with the formal procedures set out in the Birth and Deaths Registration Act 1953, (b) have made a parental authority agreement in prescribed form, or (c) have obtained a court order granting PR to the unmarried father. Prior to 1 December 2003, (and in this case the children were both born prior to that date), the registration route in (a) was not available to the parents in any event; nor do the children's Spanish birth certificates comply with the requirements of the 1953 Act: the father had never made a parental authority agreement; and the father has never obtained a court order granting him PR. Thus he had not acquired PR under English Law at the time of the removal of the children and, so, as a matter of English law, he had no rights of custody within the meaning of Article 3 of the Convention: see Re JB above.
38. The difference between the experts relates to the question whether or not a Spanish court, proceeding properly in accordance with Spanish law, would hold it to be contrary to Spanish public policy to apply English law in this case. Sr Cedillo says it would. Sr Munoz says it would not.
39. On this question, in the experts' joint report to which I have referred, the disagreement of the experts is recorded in this way, though it has been explored and elaborated in oral evidence before me.

"4. On the applicability of English law;

4.1 We both agree that, under Spanish law, English law shall not apply in Spain in any event if it is contrary to public policy.

4.1.1 Mr Cedillo is of the opinion that English law is not applicable as, when applied in Spain as a result of a rule of conflict, it is contrary to public policy as it arbitrarily deprives the father of parental responsibility and of the right to have access/contact with the children.

4.1.2 Mr [Munoz] is of the opinion that bearing in mind that

Because upon complying with the legal requirements established in English law an unmarried father can acquire PR,

Because in English law the children's protection is guaranteed and

Because the European Court of Human Rights has declared that [there is] reasonable justification for the difference in treatment between married and unmarried fathers with regards to the automatic acquisition of PR in English law

English law shall apply

4.2 We both would agree that, in the event of English law not being applicable because it is contrary to public policy, then Spanish law would be applicable by default. "

40. The report goes on to deal with the significance of the Spanish proceedings commenced by the father 3 months after the removal of the children. The report states:

"5. On the Spanish Proceedings

5.1 We both agree that proceedings to determine residence, right of access and maintenance of non-matrimonial parents were filed before the court of first instance number 4 of Fuengirola who accepted the proceedings by its order dated 1^st September 2008. The court has perused the application and documentation submitted, analysed the capacity and standing of all the parties involved and officially accepted the proceedings based on the birth certificates from the above mentioned registry. The capacity and standing would be assessed on the basis of the certificates from the Civil Registry establishing filiation. By accepting the proceedings, the court has indicated its initial recognition of Mr Kennedy's

- parental responsibility (for Mr Cedillo)

- Paternity (for Mr Iglesias)

over his children, as otherwise the court would not have accepted him as a party to the proceedings.

5.2 Mr Munoz is of the opinion and would like to stress that, if the unmarried father succeeded in these proceedings, he would be able to obtain PR, right of custody and the return of the children to Spain. From there onwards any removal would be considered wrongful and would fall under the Hague Convention regulation. In the meantime, as PR has not been acquired the father has not [been] deprived of it and the removal has not [been] wrongful".

41. I shall first deal with the argument of Sr Cedillo that the order of the Spanish Court dated 1 September 2008 in the Spanish proceedings commenced by the father in June 2008 indicates the initial recognition by that Court of the father's parental responsibility, whereas Sr Munoz asserts that it shows no more than the court's acceptance of the father's paternity. In this respect, I accept the opinion of Sr Munoz.
42. The order concerned is simply a form of summons directed to the mother "To appear at the court mentioned above to challenge the request in writing" of the father for verbal judgment on the measures sought by him in relation to guardianship, custody and access. The request for measures sought relief based on the domicile of the parties, with no reference to their nationality or any issue as to the governing law. The Legal Grounds set out in the order record that on the basis of the father's request and the accompanying data and documents delivered, the mother fulfils the "procedural requisites of capacity, representation and postulation" required in order for her to appear in court. The grounds also set out the territorial competence of the court and the transfer of the father's request to the public prosecutor and the defendant mother with a deadline to reply. The operative part of the order provides for various procedural steps, for the attendance of the mother at risk of contempt of court, and records that an appeal has been filed against the procedural "resolution" before the court, requiring that appeal to be filed within five days.
43. On that basis, neither expert asserts before me that any relevant view, provisional or otherwise, has been expressed by the Fuengirola court on the law to be applied; they address themselves simply to the implications of the fact that the court would have based its acceptance of jurisdiction inter alia upon the birth certificates supplied with the application, which not only refer to the domicile of the parties but also to their nationality. Sr Cedillo bases his view that there has been an "initial recognition" that the father has PR on the fact that, once parentage (filiation) is established by production of the certificates, then PR automatically follows, whereas Sr Munoz distinguishes between the two. Albeit he agrees that, in the case of an unmarried father who is a Spanish national, PR automatically follows upon filiation, filiation and PR are nonetheless conceptually distinct, both in Spanish and English Law, as the terms of SCC 110 to 112 make plain. There are therefore occasions when the two concepts do not merge but require to be kept distinct, in particular in the case of foreign nationals in respect of whom the court, when adjudicating in matters of custody, will be required to apply the foreign national law under SCC Article 9.4 unless obliged to do otherwise under SCC Article 12.3.
44. I accept the analysis of Sr Munoz in this respect and therefore consider that no conclusion can be drawn from, nor should any weight be given to, the preliminary steps which have been taken in the Spanish proceedings to date. In any event the issue before me relates to the custody rights of the father at the time of the removal of the children, at which point no Spanish proceedings were in existence.
45. Leaving the Spanish proceedings brought by the father to one side, in support of his opinion that Spanish Court would hold English Law inapplicable as contrary to Spanish Public Policy, Sr Cedillo reasons as follows.
46. (1) Under Spanish Law, once paternity is established by the filiation procedures laid down in SCC Article 120, it produces immediate (retroactive) effects and, in particular, (subject to the exceptions set out in Article 111) it operates to confer parental authority/PR under SCC Article 154, such authority to be exercised jointly by both parents, subject to variation by a Judge on application: see SCC Article 156.
47. (2) Various judgments of the Spanish Supreme Court and decisions of Spanish provincial courts in cases concerning the removal of, or limitations placed upon, the parental authority/PR of Spanish nationals, make clear that PR is an institution created to protect the child based on the relationship of filiation whether within or outside marriage or by adoption. It is a function which is established for the benefit and protection of the child, normally exercised jointly by both parents and its content is formed by parental duties rather than rights (SCC Article 154). It is for those reasons that, once filiation is established by the process of registration at the Civil Registry, Spanish parents will only be deprived of PR in specific cases, as set out in SCC Article 170 and as a measure to protect the child rather than as a sanction applied to the parents (see, for example, the judgment of the Appeal Court of Asturias No 29/1998 (5^th Section), of 16 January, AC1998, 37).
48. (3) Sr Cedillo produces and relies upon an extract from a decision of the Spanish Supreme Court No. 415/2000 (Civil Chamber) in a case concerned with the removal by the court of PR from parents in order to protect the welfare interests of the child.

"Parental authority is in the Modern Law, and in practice in our positive Law, a function to the service of children, that fundamentally entails duties charged to the parents, with a view to providing them with assistance of all kinds, as proclaimed in Article 39.2 and 3 of the Constitution (RCL 1978, 2836 and Ap NDL2875), in such a way that all the judicial measures agreed, including that of deprivation of parental authority, must be adopted by taking into account above all the superior interest of the child, as stated in Article 3.1 of the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 1989 (RCL 1990, 2712), incorporated within our domestic law by means of the corresponding ratification. Also a similar precept is contained in the current Law 1/1996 15 January (RCL 1995 145) on the judicial protection of the minor (Article 2). With the deprivation of the parents' parental authority over the minor child, insufficiently cared for, it is not a case of sanctioning their conduct as regards to failure to fulfil their duties (although in the penal order this may be typified and sanctioned) but it is question of defending the interests of the minor, so that this exceptional measure is found to be necessary and appropriate for the adequate protection of such interests…This superior interest of the child…is also implicitly set out in Article 154 of the Civil Code, when it states that parental authority will always be exercised to the benefit of the children…" (Emphasis added)

49. (4) Sr Cedillo acknowledges the absence, so far as he has been able to ascertain, of any reported judgment which (at least on its face) has considered a public policy objection to the application of a national law on the ground that it does not recognise the automatic grant of parental responsibility to the father in the case of an unmarried union. His explanation for this is that it has hitherto been taken for granted that to apply such a law would be contrary to the principles of the Spanish Constitution and the SCC. So far as those principles are concerned, he quotes a decision of High Court No 5 of Torremolinos (Proceeding: Measures on children of de facto unions 224/2006) in which the court was concerned with an application by a Spanish father to the Spanish court for guardianship and custody of his children by his unmarried partner whose whereabouts had become unknown.
50. In stating the legal background, the court recited the principles to be observed under Spanish law in relation to children born of a de facto union as follows:

"As expressed by the sentence of the Provincial court of Cordoba of 19-7-02, "it is obvious that children born of a de facto union are absolutely equal, with respect to matrimonial union, given the clarity of Article 39E.C. which ensures all protection of the children before the law regardless of the relationship, therefore as regards the children it is appropriate to maintain the necessity of application of the same legal scheme without introducing inequalities in any way, the discriminatory nature of which would be unquestionable.

On the basis of these hypotheses, the doctrine coincides in applying in relation to children born outside marriage, the effects that the civil code sets out for children born within marriage in Articles 90 to 96, in chapter IX, heading IV, named "of the effects common to nullity, separation and divorce". These articles, as is known, also refer to maintenance, guardianship and custody, parental authority, access, holidays and the use and enjoyment of the conjugal home…

Article 92, 93, 94 and 95 concerning judicial measures on the care of education of children, parental authority, maintenance, access and holidays and the use and the enjoyment of the domicile, are perfectly applicable, to arise as a consequence of the breakdown of the non-matrimonial situation of living together as regards the measures that must be agreed in Court in relation to the children…"

"… account must be taken as a principle of entire protection of the minor as set out in Article 39.2 of the Spanish Constitution, in view of which the public authorities will ensure the entire protection of the minors, which has its reflection in turn in Article 92.2 of the Civil Code which states that the measures to be adopted in relation to the minors must always take place from the point of view of their benefit, which may not be confused with the interest of the parents… and generally speaking all provisions that govern matters of marriage, parent-child relationships or guardianship, constituting a fundamental and basic guiding principle of the judicial proceeding that agrees with constitutional proceeding, also having to ensure at all times that the children are affected as little as possible by the separation, whether of a marriage or the breakdown of a situation of living together more uxorio." (Emphasis added)

Sr Cedillo opines that this passage demonstrates the importance attached by Spanish law by virtue of Article 39.2 of the Spanish constitution to the principle of absolute equality of treatment as between children of married and unmarried couples.

51. (6) Furthermore, he relies on a passage in the text of a commentary of J D Gonzalez Campos (Commentario Del Codigo Civile) which links the necessity for this equality of treatment with SCC Article 12.3 as follows:

"(III). Content of the Association [i.e. Filiation] and Parent – Child Relationships. Article 9, paragraph 4 of the Civil Code, on submitting these aspects to the personal law of the child, dedicates the unity between the constitution of filiation and its effects …

1. The "content" of filiation consists of the basic rights and directs that they integrate in status filii (DIEZ PICAZO Y GULLON, System, IV, page 249). But given that Article 39.2 EC determines that the children are "equal … before the law regardless of their relationship", the content of the relationship constituted in accordance with a foreign law, if it does not consecrate the comparison between a matrimonial and non-matrimonial relationship, would be manifestly contrary to "Spanish Public Order" and would entail the non-application of the foreign law (see section of Article 12.3 of the Civil Code) and its replacement by Spanish law" (Emphasis added)

52. (7) The only reported decision produced by Sr Cedillo involving non-Spanish parties and directed to the question of non-recognition of a foreign law on public policy grounds (albeit in circumstances very different from this case) is a decision of the Provincial High Court of Murcia, civil appeal number 166/2003
53. In that case the Provincial High Court was concerned with the question of whether or not, in matrimonial proceedings for separation between two Moroccan nationals, married in Morocco but habitually resident in Spain, the court was competent to hear proceedings brought for custody and maintenance by the mother in respect of the children of the marriage. Issues arose as to the applicable substantive law, which was stated to be Moroccan law unless that law was contrary to Spanish Public Policy under SCC Article 12.3. In fact, neither party relied upon provisions of Moroccan law in relation to the substantive issues in the case. However, in dealing with the competence issue, the court referred to the fact that:

"The wife has manifested during the course of the proceeding, the limiting nature of her basic rights which would be implied for her by the application of a national law, whereby she is invoking the objection of International Spanish Public Order (art.12.3 of the Civil Code) that her applicable national law contravenes the basic principles of our legal system, such as non-discrimination on sexual grounds, which excludes its application by the Spanish court…" (Emphasis added)

54. In relation to the substantive matters, in dealing with the reliance of the husband on a plea of res judicata in respect of a talaq pronounced against the wife by the Moroccan court, of which she had no notice, the Spanish court, having rejected the plea on other grounds, went on to state:

"This is the case of the traditional objection of public order which in the present case should also be assessed, not in terms of the simple fact of being in the presence of a unilateral repudiation (talaq), but because in this supposition, the circumstances of the case in practice show that it adversely affects the principle of juridical equality between the spouses, so that a situation arises of lack of juridical protection of the wife, granting the husband an absolute right to unilaterally terminate the matrimonial contract, in circumstances of total lack of defence for the wife, who is deprived of documentation, means of subsistence and her right to reside in her habitual domicile, conditioning her rights to her presence in Morocco, when she habitually lives in Spain."

55. (8) Finally, Sr Cedillo cites a recent case in relation to which he acted as a reporting expert for one of the parties in the Velez Malaga court of First Instance (No 100/2007). He produces a judgment and/or order made in those proceedings in response to a request for a declaration in connection with Article 15 of the Hague Convention in a case where the court had before it proceedings to determine residence, right of access and maintenance in respect of non-matrimonial children of English Nationals. I have not been supplied with a translation. However, Sr Cedillo acknowledges that no reference to SCC Articles 9.1, 9.4 or 12.3, nor indeed to Article 39.2 of the Spanish Constitution appears in this judgment; it only refers to and analyses PR under Spanish Law which it proceeded to apply, confirming that the father at the time had parental responsibility. While it is indeed apparent that it was a reference in accordance with Article 15 of the Hague Convention, there is no indication what questions were put to the court. Nonetheless, Sr Cedillo states that the court decided to apply Spanish Law and wholly disregarded English Law as applicable in accordance with the Spanish rule of conflict of laws. Based on that fact, Sr Cedillo states his opinion that, if the question were under consideration by the court in Fuengirola which is now seised of the Spanish proceedings and would deal with the point only in the context of a full welfare hearing (see paragraph 11 above), it is highly likely that the Fuengirola Court would issue a similar declaration.
56. (9) Against that background, Sr Cedillo states his opinion that English law should not be applicable as the national law in this case because, when applied in Spain in a case of this kind pursuant to the Spanish rule of conflict, it produces a result which is contrary to Spanish public policy on the grounds that its effect is arbitrarily to deprive the father, whose filiation has been determined, of parental responsibility and/or it attributes guardianship and custody to the mother without taking into account the interests of the children.
57. Sr Munoz on the other hand maintains the opinion stated in his original report (see paragraph 7 above).
58. As to Sr Cedillo's analysis as set out in paragraph 46 above, Sr Munoz does not dispute that, under Spanish law, once paternity is established it produces immediate and retroactive effects and, in particular, conferment of PR. However, he does not accept that such is the case in respect of the children of foreign nationals, as supported by the agreed text set out in paragraph 32 above. In this respect, the concepts of filiation, which (once determined) is an irremovable matter of status, and PR, which is open to removal under SCC Article 170 and judicial intervention under SCC article 156, are to be distinguished.
59. Sr Munoz acknowledges the public policy exception contained in SCC Article 12.3 but opines that the Spanish court would not regard application of English law as contrary to Spanish policy in relation to the attribution of PR. His points are as follows.
60. He emphasises the wording and apparently clear intention of SCC Article 9.4 that the character and content of filiation including parent/child relations should be governed by the personal law of the child. This clearly anticipates application of a law which may ascribe different characteristics and consequences to the status of parenthood and, Sr Munoz opines, it is wide enough to countenance the application by a Spanish court of a foreign law (such as English law in this case) which provides that an unmarried father may only acquire PR upon application to the Court.
61. Sr Munoz points out that whereas Spain, in common with Belgium, France, Italy and the Czech Republic, imposes PR and provides for the exercise of parental rights and duties by both parents regardless of whether they are married or not, in Austria, Germany and the Netherlands, if the parents are not married, the law allocates parental responsibility to the mother alone. Sr Munoz expresses the view that, given this range of differences in various jurisdictions of the Community, such differences ought not be regarded as contrary to Spanish public policy, but rather as part of a family law regime deserving of recognition provided that it pays proper regard to the principles of equality, non-discrimination, and the child's best interests, all of which are common principles of English and Spanish law in family law matters. He relies upon the distinction, identified in a particular text book entitled "Metodo de Derecho Internacional Privado" by Jitta (published in 1890), between Internal Public Policy in the sense of any legal matter which has not been left to the will of the people and International Public Policy which requires a judge to apply foreign law "unless there is powerful risk of damage or harm to the community." He states as his opinion that "internationally speaking a different regulation can only be excluded as an exception by Public Policy if it causes harm or damage to the Spanish community."
62. In this connection he refers, as an obvious example of the appropriate application of the public policy provision in SCC Article 12, to the refusal of the Provincial High Court of Murcia to recognise Moroccan law as the applicable substantive law in its decision referred to at paragraphs 53-55 above. In that case Moroccan law conflicted with a basic principle of Spanish law, namely non-discrimination on sexual grounds, and involved the absolute right of the husband to terminate the matrimonial contract without any right of defence for the wife. This state of affairs is to be contrasted with the position in this case, whereby, under English law, the unmarried father has a right to make an application for PR under s.4 (1) (c) of the Children Act 1989, in relation to which the outcome will principally depend upon the welfare interests of the child as the paramount consideration.
63. As to the extracts from decisions of the Spanish courts relied on by Sr Cedillo (see paragraphs 47-50 above), Sr Munoz recognises that they emphasise that parental authority/PR is in Spanish law a function established for the benefit of the child. However, he points out that the issues for decision were concerned with the deprivation or removal of PR once granted and the observations of the courts fall to be read in that context. The remedies quoted were not directed to the position whether or not the Court should refuse to recognise and apply a foreign law which does not grant PR automatically on proof of parentage, but rather requires an unmarried father first to demonstrate, by application to the Court, that the grant of PR is indeed in the interest of the child.
64. As to the passage of text quoted at paragraph 51 above, Sr Munoz similarly rejects the conclusion there stated that, if the content of the parent-child relationship (i.e. PR) constituted under the foreign law does not consecrate the comparison between a matrimonial and non-matrimonial parent-child relationship, it would be manifestly contrary to "Spanish Public Order" and entail non-application of the foreign law under SCC Article 12.3.
65. So far as European court procedure is concerned, Sr Munoz places reliance on the decision of the European Court of Human Rights in B v UK [2001] 1FLR, 1, the head note to which reads as follows

"Shortly after the unmarried father of the child applied for parental responsibility order and a contact order, the mother removed the child from England to Italy. The English courts dismissed the father's application under the Hague Convention on the Civil Effects of International Child Abduction 1980, on the basis that he did not have any formal rights of custody under English law (re B (abduction)(rights of custody)[1997] 2 FLR 594). The father took the case to the European Court of Human Rights, complaining that unmarried fathers were discriminated against in the protection given to their relationships with their children by comparison to the protection given to married fathers. HELD – the complaint was declared to be inadmissible because there was an objective and reasonable justification for the difference in treatment between married and unmarried fathers as regards to the automatic acquisition of parental rights, which related to the range of possible relationship between unmarried fathers and their children. Fathers who had children in their care to any degree had different responsibilities to fathers who simply had contact, justifying the difference in treatment of those with parental responsibility than those without."

66. The relevant passage of the judgment states at 5b:

"Although the applicant complains of discrimination between married and unmarried fathers, the court notes that the domestic courts which examined the applicant's possible applications did not make reference to the fact that he was not married to the child's mother. They only refer to the fact that the applicant did not have parental responsibility.

It is true that, under the Children Act 1989, married fathers have parental responsibility automatically, while unmarried ones need to acquire it in accordance with the provisions of the Act. However, the court has considered that the relationship between unmarried fathers and their children varies from ignorance and indifference to a close stable relationship indistinguishable from the conventional family-based unit (McMichael UK judgment of 24 February 1995 (series A no 307-b, p58 (98)). For this reason the court has held that there exists an objective reasonable justification for the difference in treatment between married and unmarried fathers in regards to the automatic acquisition of parental rights (above)."

67. Sr Munoz states that the effect of that decision would inhibit a Spanish court from finding that application of English law in this case would result in what is described in the agreed text as an 'arbitrary' deprivation of the father's parental control, the difference in the parental regime under English law having been described as having objective reasonable justification. Nor, given the right of the father under the Children Act 1989 to make application to the court for parental responsibility, the outcome of which would depend upon child welfare considerations, would it amount to attribution of guardianship and custody without taking into account the interest of the minor such interest being the paramount consideration in English law in relation to such applications.

Discussion and Conclusions

68. Despite the superficial force of that argument, having carefully considered the matter, I prefer the opinion of Sr Cedillo. In coming to that conclusion I have borne on mind that the overall burden of proving a breach of custody rights rests upon the father. However, I have also borne in mind that the nature, scope and application of public policy considerations may vary from country to country and, in this case, I am required to direct my attention to Spanish rather than English public policy considerations. Finally, I bear in mind the pertinent observations in Dicey, Morris and Collins; the Conflict of Laws (14th ed.) at para 5-004 that:

"The doctrine of public policy has assumed far less prominence in the English Conflict of Laws than have corresponding doctrines in the laws of foreign countries, e.g. France and Germany. One reason for this may be that the courts invariably apply English domestic law in proceedings for divorce and separation, for the guardianship, custody and adoption of minors, and for the maintenance of wives and children. Thus, foreign law is inapplicable in many important departments of Family Law in which, in foreign countries, its exclusion on grounds of public policy is of frequent occurrence."

69. For those reasons, although by means of an Annex to the position statement of the mother, I have been supplied with references to a number of English decisions in which the Court refused to apply foreign law or practice on the grounds of public policy, I have not found those references of much assistance in the instant case. In addition, rather than proceeding on the broad criterion of "powerful risk of damage or harm to the Spanish Community" advocated by Sr Munoz, I prefer to turn for assistance to the more focussed statements of principle in the cases and texts I have quoted and, in particular, the categorisations contained in the agreed text set out at paragraph 34 as supplemented by that quoted at paragraph 51 above. These passages, and the various quotations from reported cases which I have emphasised, make clear the great weight which is attached by the Spanish Courts and legal commentators to the provision in Article 39.2 of the Spanish Constitution which requires the public powers (which includes the Spanish Courts) to guarantee the integral protection of children as being equal before the law independently of their filiation; and further, that the courts regard the automatic grant of parental authority as a function directed to the service benefit and protection of children, involving as it does duties rather than rights on the part of the parents, and necessitating the application of the same legal scheme to the children of both married and unmarried parents without the introduction of any inequalities between them. The emphasis given to the importance of avoiding such inequalities indicates to me that the principle of equality enshrined in Article 39.2 of the Spanish Constitution is regarded as a basic principle of the Spanish legal system (c.f. the words emphasised in the quotation at paragraph 53 above), departure from which in any significant respect could be manifestly contrary to Spanish public policy (see the passage emphasised in paragraph 51 above).
70. I do not derive substantial assistance from the decision in B v UK. In that case, the complaint was of discrimination between unmarried and married fathers in relation to the acquisition by a father of parental authority as a matter of parental right, the focus being upon the right of the father to the benefits of automatic recognition of PR. In this case, as argued by Sr Cedillo, the Spanish cases and texts make plain that the provision for the automatic attachment of PR to a parent (married or unmarried) upon proof of filiation is to be viewed as a right or benefit of the child, of which he or she is not to be deprived, and that application of a foreign law which does not provide for automatic recognition of parental responsibility in respect of the child of an unmarried father, would be (a) discriminatory vis-à-vis the child, and (b) inconsistent with the guarantee contained in Article 39.2 of the Spanish constitution.
71. It is surprising to me that there appears to be no (or at any rate no authoritative) decision of a Spanish court in which the point I have to decide has been specifically considered. It may or may not be that Sr Cedillo's explanation is correct that the point is one which has not previously surfaced because it has hitherto been taken for granted. It is of course one peculiarly likely to arise in the course of Hague Convention proceedings, in relation to which a suitable machinery for compliance with requests under Article 15 has apparently yet to be put into place in Spain. If Sr Cedillo is right, it is surprising that the point was not taken before Munby J in the case of Re JB, in which Sr Cedillo was himself involved. Whatever the position in the respect, however, the issue is now squarely before me and has been explored at considerable length.
72. The materials I have summarised make clear not only the importance in Spanish law of the attribution of parental authority to both unmarried parents, but the importance within the concept of parental authority of the question of deciding whether the child can be transferred to another country, whether permanently or temporarily, which decision should be exercised jointly and in the interests of the child. That is the question at issue in this case.
73. I am satisfied the Spanish court would hold that in any case such as the instant case, where (a) it is not in dispute either under the law of Spain or England that the paternity of the unmarried father has been established (b) it is clear that, at the time of the removal, the father was exercising PR/custody rights including his rights of parental control as recognised by Spanish law and (c) the effect of applying SCC Article 9.4 would be to deprive the child of the benefit and protection of those rights as at the time of the child's removal, such a result would be discriminatory as between the children of married and unmarried parents and it would be manifestly contrary to Spanish public policy as enshrined in Article 39.2 of the Spanish constitution.
74. If it be necessary to express that conclusion in terms of category (2) of the agreed text set out at paragraph 34 above, I do not consider that, in avoiding the application of English law, the Court would be applying the exception in respect of a foreign law which "arbitrarily deprive(s) the father or mother of parental control and the right to relate to the child". I do not consider that a system such as that in England, in which the rules are clear and whereby an unnamed father has an unfettered right to apply to the court for parental responsibility and contact if he decides to do so can be said to be arbitrary in effect. However, I do consider that the application of English law in this case would have the effect of attributing custody of the children to the mother alone without taking into account their welfare interests as recognised and protected by Spanish law.
75. It was the submission of Miss Scriven QC that such a finding would be contrary to the purpose and provisions of the Hague Convention which draws a distinction between custody and access rights and has, as one of the objectives set out in Article 1 of the Convention (Art 1(b)):

"To ensure the rights of custody and of access under the law of one Contracting State are respected in other Contracting States"

76. I am not persuaded by that argument. In my view, resort to the objectives of the Convention would be more likely to influence the Spanish court in the opposite direction. The first objective of the Convention, set out in Article 1 (a) is:

"To secure the prompt return of children wrongfully removed to or detained in any contracting state".

Both objectives are based, as the Preamble to the Convention makes clear, on the proposition that the welfare interests of children relating to their custody are best promoted by securing their prompt return to the state of their habitual residence, whose courts are in the best position to deal with such welfare interests under their own domestic law. Articles 3 and 5 of the Convention require the court seized of a Convention application to determine whether there has been a breach of the rights of custody (including the right to determine the child's place of residence) "under the law of the State in which the child was habitually resident immediately before the removal". Although the Convention, in adverting to the law of the state of the child's habitual residence under Article 3, thereby includes the international private law rules of that state (see the explanatory report of Professor Perez-Vera at para 66), there is no provision of the Convention which directs or concerns itself with how the courts of the state of habitual residence interpret and/or apply those rules in the face of a public policy provision such as SCC Article 12.3.

77. In this case, it is clear on the facts, not only that Spain is the country of habitual residence, but that the father was at the time of the children's removal exercising rights of parental control and custody according to its laws. On the face of it, but for the application of English law under the provisions of SCC Article 9.4, it is a paradigm case for the application of the provisions of the Hague Convention.

Determination of Preliminary issue

78. For the reasons I have given, I find that the removal or retention of the children was in breach of rights of custody attributed to the father under the law of Spain for the purposes of Articles 3 and 5 of the Hague Convention.

Footnote

79. Having so concluded, it is unnecessary for me to deal with the "fallback" submission advanced by Mr Scott-Manderson for the plaintiff father to the effect that the formal birth certificates of each child, regularly issued under Spanish law are instruments apt to be recognised and declared enforceable under Article 46 of B II R for the purpose of obliging the English court to recognise and enforce the conferment of parental authority upon the father under Spanish law. Suffice it to say that, in the light of the function, form and content of the certificates, I found no substance in this submission.