I am a Spanish national who has been living in the UK for 12 years. I have an 8 year old son with my ex-partner (we were never married). We separated 3 years ago and I have been the primary carer with the father having generous
contact (10 days per month). My ex partner has made our life really difficult since the split despite the fact that he has now remarried. He has been incredibly volatile with maintenance and with the agreed contact as he never paid on time and he continuously changed the agreed schedules. In December 2011 he also informed me that he was going to dramatically reduced maintenance (he has his own business and he does not declare his full earnings so he is able to do this if he applies CSA regulations to his declared earnings). It was at that point that I made an application for leave to remove as I was finding it hard as a single mum on my own in London and with the additional stress of his attitude and financial impositions. While this process was starting my younger sister also had a really bad accident and nearly died. She had to learn to walk and talk again and is still in rehabilitation. Obviously at that point I became desperate to go back home to be near my family. At that point I also started a relationship in Spain (while I was visiting my family) with someone I have known since childhood. We have now been together for 8 months and really want to build a future together. I felt that I had a really strong case given that I am a Spanish national, my son is Spanish, he is completely bilingual and has been used to spending prolonged periods of time in Spain, he is incredibly close to my family, we have friends, and tons of family support. In addition I had a perfect track record of always respecting and promoting contact between my son and his dad (despite the fact that he made our lives very difficult!)and I never in the 3 years since we separated cut contact between my son and his dad. My employer also allowed me to continue working from Spain on the condition that I came back to the UK every time that my son was off
school (which meant that my contact proposal was incredibly generous!). I enrolled my son in a fantastic international school that follows the English National Curriculum in Mallorca (where I was born and raised and where my family lives), which is an idylic location for any child to be brought up in. Unfortunately we had a negative Cafcass report as the Cafcass officer (who was incredibly incompetent!) said that it was a finely balanced and difficult case but that she felt that my son would miss his dad and stepmum too much. My ex also very recently had a baby (my son´s stepbrother) who was premature and is still in hospital. Cafcass felt that it would not be right to separate my son from his half-sibling. Cafcass evaluation was actually not accurate at all as my son is really keen to go to Spain. Cafcass interviewed him only for 13-15 minutes (it was shocking!) and then lied under oath saying that she had interviewed him for an hour when asked by my
. The judge relied on the Cafcass assessment and said that he didnt feel that the impact on my emotional stability would be so negative if I was not allowed to go back home and that I could continue my relationship from a distance! To top it all off, my barrister
suggested during the process that we agree to the shared care residence
order that my ex requested and that it would be looked at very negatively if we didnt accept. So I accepted to this. The judgement came out last Friday and I am absolutely devastated. What are my options? My lawyers are looking into whether it can be appealed but from a first look she didnt feel that it was very appealable. What other options do I have? Could I reopen the case in a Spanish court? What changes in circumstances would need to happen for me to be able to reopen the case and have a real chance of winning? I am still in absolute
shock that bearing in mind the situation we have been refused the authorisation to leave. Everyone around me keeps telling me as well that it looks that there has been discrimination based on the fact that my ex was English and I am not. Is this something that tends to happen and if so can it be appealed on those grounds in a Spanish court? ...thank you.
I ''m sorry to hear of your distress. I think you need to be guided by your lawyers because they are the experts when it comes to law, they have sight of the relevant documents and are in possession of all the facts. It isn''t possible to
appeal a judgment just because you don''t agree, it has to shown that there was an error of fact or law or the judge made a judgement no other judge could reasonably have made. If you can''t appeal then there is no point in reopening the case at this stage although you could try again later.
Under European and international law the courts in the country where a child habitually lives has jurisdiction to determine children cases so you can''t reopen the case or appeal in Spain.
Discrimination is treating people in the same situation in a different way. Regardless of nationality there are always cases where leave to remove is refused and I can''t see anything written above that indicates you weren''t treated in the same way as an English person would be.
CAFCASS reports are subject to independent review of the judge. The bottom line is your son is too young to understand the implications of a decision. He may be keen to go to Spain but that has to be balanced against the long term impact on the relationship a child has with his natural father and extended family. The relationship with your new partner isn''t well established and won''t be seen as stable for your son as the existing arrangement.