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Key facts of the case:

 

Extraordinary appeal for procedural violation and appeals through cassation against the ruling issued in foreign enforcement proceedings legal title given by the High Court of England and Wales under Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No. 1347/2000. Specifically, the purpose of these  enforcement proceedings comes from the enforcement of the Resolution issued by the English Court of 27 August 2014 and which involves the return of the child to England, to be placed under the care of the County Council of Surrey. Against this resolution two appeals were filed, but the two appeals were not admitted.

Key legal question raised by the Court:

The current ruling is in response to the extraordinary appeal for procedural infraction and cassation filed against the Decision of 16 March 2016 issued by the Provincial Court of Malaga (Audiencia Provincial de Málaga).

In this regard the appellant alleges:

  • First, the nullity of the actions due to the fact that the procedure for the restitution of a minor was used for transfer or illegal retention due to an international abduction that was not correct. According to Mrs. Olga, the proceedings that had been followed are that of an execution envisaged in Procedural Law, since it is the execution of a Resolution of 27 August 2014 issued by the English High Court of Justice (Family Division). Within this context, the  appellant alleges also that the enforcement of the decision of the English Court  is not applicable due to the pending divorce proceedings in Spain as well as other protective  measures in relation the minor, requested by the appellant in the Spanish courts under  Article 158 of the Civil Code and Article 24 of the European Union Charter of Fundamental Rights, specifically the danger to the minor of remaining under the care of her father.
  • Second, the appellant a alleges the violation of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation  (EC) No. 1347/2000; the Civil Code, the Law of Civil Procedure, and also Article 24 of the European Union Charter of Fundamental Rights as well as the Law on Minors.

Outcome of the case:

The Supreme Court dismisses all appeals against the Decision of 16 March 2016 issued by the Provincial Court of Malaga (Audiencia Provincial de Málaga) arising from the execution trial of the foreign judicial procedure No. 1049/2014 of the Marbella Court of First Instance No. 5. In addition, the appellant is also ordered to pay the legal costs.