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31 JAN 2013

ABDUCTION: DL v EL (Hague Convention: Effect of Reversal of Return Order on Appeal) [2013] EWHC 49 (Fam)

(Family Division, Sir Peter Singer, sitting as a High Court judge, 17 January 2013)

The parents, who both originated in Ghana, met, married and had a child together in the USA. When the marriage ended the mother took the child to England. In the USA proceedings the father was awarded sole custody of the child and the mother returned to the UK where she instituted Hague Convention proceedings.

The mother claimed the child had become habitually resident in the UK. The child was returned to her on that basis and she applied for a resident order in the UK. The father appealed the decision in the Hague proceedings and the US court reversed the decision. The father applied for residence and contact orders in the UK. In the meantime the mother applied to the US Supreme Court to reinstate the decision in Hague proceedings. That appeal remained pending.

The father now applied for a return order under the Hague Convention or failing that a return order under the court's inherent jurisdiction.

The court concluded that a child's habitual residence could in effect be changed if he was removed prior to the exhaustion of any appeals process. Of particular relevance was that the father had not sought a stay of proceedings in the US pending the appeal. In conclusion the child was habitually resident in the UK at the time the father issued his application under the Hague Convention, notwithstanding the appeal decision. The father's application was dismissed.


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