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Family Law

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Court of Protection Practice and Procedure Conference 2016

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03 DEC 2013


(Family Division, His Honour Judge Horrowitz, sitting as a High Court judge, 17 July 2013)

The 4-year-old child was born in England to the Irish father and Russian mother. The father's name was placed on the birth certificate and he, therefore, had parental responsibility. When the mother made allegations of domestic violence she removed the child from the jurisdiction and took her to Russia without the father's consent. After removing the child from the jurisdiction the mother raised the issue of the child's paternity and therefore a reliable DNA test needed to be carried out.

The mother obtained employment in Russia and commenced a new relationship. When the father heard the mother was visiting England he issued wardship proceedings and she was served at her hotel in London. The child remained in Russia.

The father made an application to the Russian court in order to locate his daughter which contained a statement that he accepted she would continue to reside in Russia. He made no mention of an agreement or expectation for the child to return to England. Once the mother had been served with the English proceedings he discontinued the application. The English court was not made aware at the time of the Russian proceedings.

As Russia was not a signatory to the Hague Convention 1980 at the time of the child's removal, jurisdiction could only be founded on the basis of habitual residence. The mother claimed that the child was no longer habitually resident in England and that the proper forum to determine matters on residence and contact was the Russian court where she had already commenced proceedings. The mother gave undertakings to return to England with the child prior to the hearing on jurisdiction but in the event she returned alone.

The father did not now seek a return of the child and was content for her to return to Russia where she attended school as long as he had the security of a contact order within this jurisdiction. The mother insisted on the Russian jurisdiction taking over matters and objected to contact outside of Russia.

The father's application to the Russian court formed a declaration that he had accepted a new regime of the child settling in Russia and that was what was required to constitute acquiescence. In what was not an application under forum conveniens, it would be unprincipled to create or establish a jurisdiction given the evidence regarding the application to the Russian court. It was clear that the child was no longer habitually resident in England and Wales and, therefore, the mother's application to discharge the application was permitted.

During proceedings the mother raised allegations of sexual abuse against the father when he had contact with the child both in London and on holiday in Turkey. However, based on the evidence presented during the hearing, there was very little foundation for a secure finding on the basis of an unsatisfactory exploration that the father presented a risk to the child in future contact.


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