The immigration status of UK nationals living in Europe has been rendered a great deal more fragile by Brexit. As a Court of Appeal ruling showed, that is now a factor which is likely to be relevant in intra-Europe child abduction cases.
The case concerned three young children of a British mother who had lived in Spain since her mid-teens but who had never obtained official residency status. After she returned with the children to the UK, her husband launched proceedings in England under the Hague Convention on the Civil Aspects of International Child Abduction. Following a hearing, a family judge ordered the children’s return to Spain.
Allowing the mother’s appeal against that outcome, the Court noted that immigration status was not an issue that featured significantly in intra-Europe child abduction cases whilst Britain remained a member of the European Union (EU). Post Brexit, however, it was now a factor that was far more likely both to be relevant to such cases and to require analysis in the light of expert evidence.
The Court found that the judge had failed to consider, in concrete terms, the situation the children would face on their return to an EU member state. There was evidence that the mother’s lack of residency status would place her in a position of considerable fragility in Spain.
There were doubts as to her entitlement to benefits and other forms of state support in Spain and her lack of financial resources meant that she might be unable to meet her own and the children’s basic needs. The judge failed adequately to address her concerns that, in that event, the children would be at risk of being separated from her or taken into care.
In ordering the case to be heard afresh by a judge of the High Court Family Division, the Court also detected flaws in the judge’s approach to the mother’s allegations that the husband had consented to the children’s removal from Spain and that he had engaged in physically abusive and controlling conduct.