AE & JE v M: Children make extraordinary application to resolve jurisdictional impasse

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How do you resolve an impasse where the courts of two countries make conflicting children orders, and refuse to recognise the order of the other?

The answer given in the remarkable case AE & JE v M is that the children decide their own destiny, by seeking an order of their own.

The relevant facts in the case were as follows.

The parents are both Spanish nationals and were married in Spain in 2002. Their first child was born in Spain in 2003. Between 2006 and 2011 the family lived in England, where the second child was born, in 2006. The father left the matrimonial home in 2012 and the mother and the children returned to England in 2013, where they have lived ever since.

There were then conflicting proceedings concerning the children brought by the father in Spain and by the mother in England. In 2016 the Spanish court granted custody of the children to the father. The father sought to have that order recognised in England, but the English court refused to recognise it, and made a child arrangements order for the children to remain living with their mother in England. The Spanish court has declined to recognise this order.

Crucially, throughout the proceedings the children have expressed the clear wish to remain living with their mother in England.

I now skip ahead to the crux of the matter. In July 2020 the father applied without notice to the Spanish court for an order that the children should be detained by the police and placed with him if they were to come to Spain. And this is precisely what happened when, unaware of that order, they went on holiday to the Canarias with their mother in August.

After being kept locked in the father's home for ten days the children managed to escape, and they and the mother got as far as Calais, before the mother was arrested, and the children placed in foster care. The matter went before the French court, which ordered that the children should return to England with their mother. They returned on 23rd September 2020.

Meanwhile, the children, scared that their mother cannot travel in Europe without being arrested, made their own application to the court. They sought a further child arrangements order, reflecting their clearly stated views, including that they did not wish to spend time with their father.

Ms Justice Russell agreed that such an order was in the children's best interests. She concluded:

"The orders made by this Court are a reflection of the reality of the Applicants' lives, their wishes and feelings and their obligations in respect of [their father]. This latter in turn reflects the reality of the impact that his own actions have had on them and the extent of harm that he caused independently of the orders of the Spanish Courts. It is intended that the Applicants may make such use of these orders as they are advised to both in Spain and elsewhere to enable them to be released from the legal trap in which they now find themselves."