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(Court of Appeal; Thorpe and Etherton LJJ; 27 May 2010)
The mother took her children from Ireland to England. On the father's application under the Hague Convention the court required the local authority to provide interim accommodation for the child. The authority sought to have this direction reversed, although conceded that there was jurisdiction to require it to accommodate children. The judge disagreed, concluding that he did not have that jurisdiction, and discharged the accommodation order.
Held that section 5 of the Child Abduction and Custody Act 1985 undoubtedly permitted a direction to a local authority to provide accommodation. This was a judicial power necessary to ensure that the central authority could perform its duties under the Convention.
Although in abduction cases applications frequently had to be made to a judge in extreme urgency, as far as possible the ordinary discipline of litigation should be observed and an application for an accommodation order under section 5 should be on notice, particularly to the authority against which the order was sought, and should be supported by evidence. It was not uncommon for an abductor to move from city to city. Disputes between the authorities as to which should bear the burden of accommodation is to be much discouraged. As a generality, the burden would fall upon the authority within whose area the abductor was present when the order was made. If a dispute arose on the facts of a particular case, the choice of which authority was to accommodate must be made in exercise of the judicial discretion having regard to the welfare of the abducted child and within context of Convention proceedings.
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