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Family Law

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Court of Protection Practice and Procedure Conference 2016

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14 OCT 2005

CONTACT/HUMAN RIGHT: Re C (Abduction: Residence and Contact) [2005] EWHC 2205 (Fam)

(Family Division; Nicholas Mostyn QC; 14 October 2005) [2006] 2 FLR 277

The mother had abducted the child from the USA, successfully concealing their whereabouts for a number of years, in part by changing her own and the child's name, for which purpose she obtained the birth certificate of a dead child. The child was tracked down eventually only because the father had instigated a press campaign to assist in the search. The father's application for the child's return under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention) was not successful, ultimately on the basis that the child was settled in England and that the court would not exercise its discretion to return her. The father then applied for a residence order and contact orders.

The father's original Hague Convention application had been misconceived; notwithstanding the grievous wrong done to him, it was inconceivable that after a child had spent 4 years in England an English court would summarily return her to the USA, directly contrary to her interests and in defiance of her wishes. Had the father concentrated on his European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 right to respect for family life, and the State's related obligation to take all necessary steps to facilitate reunion as can be reasonably demanded, full and meaningful contact between himself and his daughter might have been put in place sooner. The mother's proposal for supervised contact was dismissed; the human rights legislation created almost a presumption in favour of normal contact, it was for the parent opposing normal contact to prove by clear evidence why it should not be in place. Once settlement in the country had been established, the child acquired habitual residence notwithstanding that the settlement had been made possible by an unlawful abduction. The English court therefore had full jurisdiction to deal with all issues, and it was to be hoped that the USA court would take the necessary steps to discontinue the custody proceedings and discharge the warrant for the mothers arrest, which created problems in allowing contact in the USA.

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