CHILDREN PROCEEDINGS/JURISDICTION: M v M (Stay of Proceedings: Return of Children) [2005] EWHC 1159 (Fam)

27 MAY 2005

(Family Division; Wilson J; 27 May 2005) [2006] 1 FLR 138

The South African parents had lived in England for nearly 2 years. The father's work permit was due to expire in December 2004 although the parents had been undecided as to whether to remain in England. In November 2004 the father announced that the family was immediately to return to South Africa and that there would be a divorce thereafter. The father went back to South Africa but the mother stayed in England with the children. The mother started proceedings in South Africa for divorce, custody, property division and financial provision, and the father made cross-applications there. The mother then obtained interim orders under the Children Act 1989 for residence and prohibited steps. The father applied to the High Court for indefinite stay of the English proceedings and summary return of the children to South Africa. The High Court granted both orders. The two applications stood or fell together. However, in the application for summary return, the children's welfare was the paramount consideration, whereas in the stay application it was the first consideration. The correct approach was to apply the paramountcy test to determine whether it was in the children's interests to return to South Africa and then to cross-check whether the criteria for a stay were satisfied. Although the mother and children were habitually resident in England, it was in the children's interests for their future to be determined by the South African courts and for them, with their mother, to return there. The more real and substantial connection was with South Africa.

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