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Family Law

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16 MAY 2012


(Family Division, Eleanor King J, 2 March 2012)

The parents lived in France with their child until she was 5 years old. At which time the parents agreed the mother and child would move to England as the maternal grandmother had cancer and in order for the child to attend an English school. The parents' marriage broke down and the mother and child remained in England and the father in France. The father issued divorce proceedings in France.

 The mother sought an adjournment of the French proceedings and was granted a residence order by the English court. The father contested the jurisdiction of the English court pursuant to BIIR. The French court transferred residence to the father and the mother appealed. The mother's appeal to the French High Court was dismissed.

 In the English proceedings the father eventually conceded that the child was habitually resident in England but he claimed the mother had accepted the jurisdiction of the French courts by engaging in proceedings there. The mother had not unequivocally accepted the French court's jurisdiction by appealing the transfer of residence order, in any event it was in the child's best interests to remain with her mother from whom she had never been apart. The child had lived in England since 2009 and attended an English school. Declining to invoke Recital 12(1)(b) to stay the proceedings as it was in the child's superior interests that the court of habitual residence should determine future issues.

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