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Family Law

The leading authority on all aspects of family law

28 JUL 2005

ABDUCTION: H v M (Abduction: Rights of Custody) [2005] EWCA Civ 976

Court of Appeal; Thorpe, Dyson and Lloyd LJJ; 28 July 2005) [2005] 2 FLR 1119

The New Zealand courts were asked, with the agreement of the parties and English judge, to determine a father's rights in relation to a child, and whether the removal of the child was wrongful under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention"), Art 15. The New Zealand courts ruled in favour of the father and found that the child had been wrongfully removed from New Zealand by the mother. In the English courts Singer J subsequently dismissed the father's Hague Convention application. Dismissing the father's appeal, the Court of Appeal held that a request under the Hague Convention is not appropriate where the issue to be decided by the other State's court turns on a point of autonomous law, such as the Hague Convention. An Art 15 determination made in another State is not binding upon the English courts, following Re J (A Minor) [1990] 2 AC 562. In any case involving the construction or interpretation of the Articles of the Convention, the answer is to be found in international jurisprudence of the contracting States. The New Zealand courts concluded that contact arrangements may amount to rights of custody under the Hague Convention, Art 5 but the English authorities differ and there is no general support among the contracting States for the New Zealand stance, following Re V-B (Abduction: Custody Rights) [1999] 2 FLR 192 and Re P (Abduction: Consent) [2004] EWCA Civ 971, [2004] 2 FLR 1057.

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