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(Family Division; Eleanor King J; 30 April 2010)
Following alleged serious violence by the father, the mother left the family home in Scotland with the child and moved to England without his permission. The father issued proceedings in relation to the child in Scotland and, although the mother had received notice of these proceedings, she issued her own proceedings in England.
The English High Court judge made various directions ex parte including a non-molestation order, residence order and prohibited steps order.
The Scottish judge granted the mother's application to stay the Scottish proceedings. At the return date hearing in England, the judge made interim directions by consent for protection of the children and provided for the filing and serving of affidavits in respect of the father's forthcoming application for the stay of the English proceedings. The father's appeal against the Scottish stay was allowed and stay was lifted. The first inter-partes welfare hearing took place in Scotland and an interim contact order was made, which the mother did not comply with.
Held that the child had been habitually resident in Scotland pursuant to s 41 of the Family Law Act 1986 and the Scottish courts were the proper courts to decide the issues in relation to her welfare. The English court had jurisdiction to make orders in respect of the child only if the immediate exercise of the courts' powers was ‘necessary for her protection'.The child protection and non-molestation orders were to continue until the Scottish courts resumed jurisdiction but otherwise the English proceedings were stayed.
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