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Family Law

The leading authority on all aspects of family law

20 MAY 2010

CARE / HABITUAL RESIDENCE: Re S [2010] EWCA Civ 465

(Court of Appeal; Wall LJ and Baron J; 25 March 2010)

The local authority was concerned about the serious neglect of a 7 year old child and applied for emergency protection order. The justices refused to do so as the mother had made an effort to change. The mother then took her child to Spain, where the father lived. The authority still brought care proceedings and the child was made a ward of court, with the requirement that she return to the jurisdiction. The parents complained that the child's removal to Spain was lawful and in exercise of mother's parental responsibility. The issue was whether the child had lost habitual residence in England when she was removed to Spain.

Held that the judge was entitled to assume that the child was raised in England and, therefore, was still a resident in England for the purposes of the emergency application. The judge was entitled to make the child a ward of court, and to conclude that Children Act 1989, s 100(2)(4)(a) applied and that the child was likely to suffer significant harm if the inherent jurisdiction was not exercised. The only process for the child's return, if justified, would be through a wardship.However, the order for peremptory return was not justified. The return order was a welfare decision to be taken on proper evidence, if the local authority was to exercise its statutory functions it could do so only by way of an interim care order, so the judge directed for an interim care hearing to happen swiftly.  

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