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(Court of Appeal; Thorpe, Dyson and Hallett LJJ; 28 June 2006)
With the father's agreement, the mother had moved to Hungary with the child. On the first day of a short access visit with the father in England, the father made an application for residence, having resolved to retain the child in England. When the child did not return to Hungary, the mother applied for summary return to Hungary under the Hague Convention on the Civil Aspects of International Child Abduction 1980. The judge ordered the child's return, and stayed the father's residence proceedings, but, in case the Hungarian court declined jurisdiction, also lifted the stay for one day to make detailed provisional arrangements for a 3-day hearing in the High Court in the event that the child was returned.
Allowing the appeal, the Court of Appeal considered that the lifting of the stay and the making of provisional arrangements for the father's residence proceedings was an incorrect exercise of judicial discretion. The father's issue of proceedings did not mitigate his wrong in wrongfully retaining the child, but had in fact increased the mother's sense of threat; the father's issue of strategic litigation following a wrongful retention was to be deprecated. It was important in such cases that the English court did not make orders which by inference challenged the jurisdiction of another Member State or suggested in any way that the English court was in a better position to decide welfare issues. While there could be circumstances in which it was open to a judge to impose a general stay on domestic proceedings, rather than to dismiss outright, in the present case the father's residence proceedings should be dismissed.
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