High Court dismisses application by mother for child to be returned to England from care of Spanish authorities

In CB (Habitual Residence: Child Born and Present Abroad), Re [2025] EWHC 1712 (Fam) (07 July 2025), Mr Justice Poole concluded that the chid, CB, was habitually resident in Spain, and that the authorities in Spain were “better placed” to assess her best interests, having full knowledge of her current circumstances.

The judge said the parents (MB and FB) are British citizens. In October 2024, MB gave birth to their child, CB, in Spain.

When CB was about one month old, MB applied for a British passport for her. The application triggered enquiries which led to CB being removed from the care of her parents by the Andalusian child protection authorities at the age of five weeks. She remains in their care.

In December 2024, as a litigant in person, MB issued an urgent application in the Family Division of the High Court seeking orders under the inherent jurisdiction against "The Spanish Authorities" that CB be made a ward of court and be immediately returned to England.

The judge observed that the application “did not set out any useful details or history”.

The issues for determination were:

1. CB's habitual residence at the time when proceedings were issued.
2. Appropriate forum and the application of Article 8 or Article 9 of the 1996 Hague Convention.
3. The exercise of the parens patriae jurisdiction.
4. Which local authority would be the designated local authority were CB returned to England and Wales.

By the time of the hearing, the fourth issue was resolved - Birmingham Children's Services accepted that it would be the designated local authority.

Turning to the applicant’s conduct in the case, the judge said: “In December 2024 I ordered (MB) to file a statement setting out, amongst other things, what if any family proceedings in England and Wales she was or had been involved in within the past ten years.

“She provided a statement which did not refer to any previous proceedings. In fact, it later became clear, there have been numerous proceedings. She has had six previous children removed from her care.”

He noted that the mother told the court in her first and second witness statements that she was in Spain on holiday when CB was born prematurely. However, according to a statement of the Social Work Team Manager for the Second Intervenor, MB told her at a meeting in April 2025:

"[MB] explained that she has a long history with Birmingham children's services and does not believe she will be given a fair shot by them, she planned to have [CB] in Spain to avoid children's services. [MB] confirmed that she does not speak Spanish and has no family in Spain. She had all her antenatal care in Spain, she has private medical insurance in Spain. [CB]'s birth was a planned C-section, she was having scan's every week and they observed that CB was not growing which was why she needed to be born early. [MB] reported that from when [CB] was born no Spanish professionals had any concerns about her care of her and it was only when she tried to apply for a British passport for [CB], as she wanted to return to the UK, that things changed."

The judge said that CB stated in her second witness statement that she lived at an address in London. However, checks at that address showed that she had no connection with it. It was found the applicant had in fact been living in Birmingham.

He said: “Hence, the true position is far distant from that stated by the Applicant in her application that CB had been 'abducted' and had only been born in Spain due to "ill-health". MB has had previous children removed from her care and has previously taken steps to avoid the involvement of children's services when becoming pregnant and giving birth. There is evidence that she planned to do so again.”

Analysing the case, Mr Justice Poole said: “This was a case in which a state authority rather than a parent or family member had kept the child from being present in this jurisdiction. That authority is within a state that is a signatory to the 1996 Hague Convention. The child was born in that country, has lived all her short life in that country and has never been present in England and Wales. The authorities in that country are fully aware of the child welfare proceedings in which MB and FB have previously been involved.”

He added: “If the child is habitually resident in England and Wales, then Article 8 of the 1996 Hague Convention would allow the Court here to make a request of the authorities in Spain to assume jurisdiction if 'it considers that the authority of another Contracting State [Spain] would be better placed in the particular case to assess the best interests of the child.'

“If the child is habitually resident in Spain, then Article 9 of the 1996 Hague Convention allows for the authorities of England and Wales to request the Spanish authorities to authorise the authorities in England and Wales to take child protection measures as they consider necessary. Such a request may be made if the authorities in England and Wales 'consider that they are better placed in the particular case to assess the child's best interests.'”

Concluding that CB was, at the relevant time, habitually resident in Spain, the judge noted: “CB was born and has lived all her life in Spain. She has never been present in England. As of 1 December 2024 she had been removed from her parents' care and was in the care of the authorities in Spain. Her mother was not forced by any other person to give birth to her in Spain and there is evidence that she chose to do so. CB has never had any integration in a family or social life environment in England and Wales. In contrast, she was integrated, insofar as a newborn infant can be, into the social and family environment in Spain. She had been under the care of health services there. Her parents had cared for her there and, at the relevant date she was in the care of authorities and foster carers there. It is often said that a starting point is that a very young child's place of habitual residence will be that of their main carer. In the present case, the link to CB's parents' place of habitual residence had been broken by 1 December 2024 when she had been lawfully removed from their care.”

The judge noted that accordingly, the means of transfer of jurisdiction to England and Wales would arise under Article 9 of the 1996 Hague Convention.

He said: “The trigger for a request under Article 9 is not whether it would be in the best interests of CB to live in England but whether this Court considers that it is 'better placed in the particular case to assess the child's best interests'.”

He added: “Unhesitatingly, I have concluded that the authorities in Spain are better placed to assess CB's best interests and that no such request to transfer jurisdiction should be made.”

Lastly, the judge noted that the parens patriae jurisdiction does not depend on the habitual residence of the child being in England and Wales. The child's (British) nationality will give the Court jurisdiction to act, but the jurisdiction should be “exercised with caution” and only when “sufficiently compelling circumstances make it necessary to exercise it to protect a child”.

He continued: “Manifestly, CB does not need this Court's 'protection' from the child protection authorities in Spain. […] Now that the Court is apprised of the circumstances of CB being taken into the care of the authorities in Spain, and remaining under their protection, it is clear that she does not need the protection of the High court of England and Wales.”

Dismissing the application, Mr Justice Poole concluded that the Court does not have jurisdiction under the 1996 Hague Convention or the Family Law Act 1986 to make the orders sought, and ought not to exercise its parens patriae jurisdiction in respect of CB.