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Family Law

The leading authority on all aspects of family law

07 JUN 2006

ABDUCTION: Re C (Abduction: Settlement) [2006] EWHC 1229 (Fam)

(Family Division; Sir Mark Potter P; 25 May 2006)

In relation to the issue of settlement, the President of the Family Division commended the approach taken by Kirkwood J in Re C (Abduction: Settlement) (No 2) [2005] 1 FLR 938: the court was to have particular regard to (a) the purposes of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention); (b) the abductor's wrongdoing; (c) the injustice to the other parent, and (d) the welfare of the child. The court should be alert not to allow abducting parents to gain advantage for themselves by wrongful actions in removing the child, yet Art 12(2) of the Hague Convention provided an instance in which an order for return was not the automatic response. In this case the necessary physical element of settlement had been established after 5 years within a small community. The fact that a child or teenager was unsettled in her own emotional or psychological state did not demonstrate that she was not well settled for Hague Convention purposes. Although there was in principle a threat of deportation, no warning or notice of such deportation had been issued, despite Home Office awareness of the situation, and there was no question of extradition proceedings. The child was settled in England, and the position had been reached whereby the US court was no longer in a noticeably better position than the English court to decide welfare questions concerning the child.

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