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22 APR 2008

ABDUCTION: B v D [2008] EWHC 1246 (Fam)

(Family Division; Baron J; 22 April 2008)

The children had been living in England with their British mother and their Portuguese father. The mother had agreed to the children being sent to Portugal for a time to be educated, while both parents remained in England, but had not realised at that time that the father considered that the marriage was over. Having experienced difficulties in having contact with the children, the mother sought an order for their return under the inherent jurisdiction of the English court, rather than bringing proceedings in Portugal under the Hague Convention. After the English proceedings began the father moved to Portugal, where he began proceedings of his own.

The children's habitual residence had remained in England, as had the habitual residence of both parents in the relevant period. The mother's consent to the children moving to Portugal for a time had not been based on full or informed information; she had consented only to a temporary move while the parents attempted to resolve their differences. Where two remedies were available in different courts in different jurisdictions it was not the case that Hague Convention proceedings should take automatic precedence; wardship was not excluded simply because the Hague Convention provided an alternative remedy. If the domestic court found that it had jurisdiction and that children had been wrongfully retained outside the jurisdiction, the domestic court was in a very good position to make specific findings. If the facts demanded an order that the children return to the jurisdiction, the domestic court could make that order without acting in derogation or contrary to the order of any foreign court. In fact the domestic court would be assisting the foreign court. In this case the English proceedings had begun first, and therefore under Brussels II Revised once the English court accepted jurisdiction, the Portuguese court was bound to cede to the English court.

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