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Family Law

The leading authority on all aspects of family law

08 DEC 2011

ABDUCTION: S v C [2011] EWCA Civ 1385

(Court of Appeal; Thorpe, Longmore, McFarlane LJJ; 2 December 2011)

The father was Australian and mother had dual British and Australian nationality. They had  one child. The mother had taken out an apprehended domestic violence order against the father.  The mother took the child to England and the father initiated Hague Convention proceedings. The father gave a number of undertakings should the mother and child return to Australia. Medical evidence showed that that mother had suffered from acute stress and contact with the father would place her at further risk. Charles J influenced by guidance in Re E [2011] UKSC 27 which refused the father's return application for a return order. The father appealed.

Re E had not altered the law in this area, it supported the accepted construction of the Hague Convention that exceptions to return are welfare based, no judicial gloss required. Paradigm case for a return order to the child's country of habitual residence for judicial determination of the issue of where the child should live. The guidance regarding directions to the court, often caused more difficulties than if the matter had been set down for determination on a summary basis. The Supreme Court could not have intended to set up a new practice in Re E, if the practice had sprung up it should be stifled immediately.

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