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Family Law

The leading authority on all aspects of family law

27 MAR 2007

ABDUCTION: Re F (Abduction: Child's Wishes) [2007] EWCA Civ 468

(Court of Appeal; 27 March 2007; Thorpe and Smith LJJ and Munby J)

The House of Lords decision in Re D (Abduction) [2006] UKHL 51, [2007] 1 FLR 961 should have focussed attention on steps that needed to be taken to ensure that in every case the child was given an opportunity to be heard, under Brussels II Revised, art 11(2). As it was clear that the obligation to hear the child must not override the obligation to conclude proceedings within 6 weeks of issue, also under art 11, in future the question of when and how the court would hear the child, in discharge of the obligations under art 11(2), would have to be considered at the first directions appointment and any subsequent directions appointment, in order to ensure that this central ingredient of the case was never out of the spotlight in all abduction cases. Of course there would be cases in which specialist counsel had failed to run below a case which might have been, or perhaps should have been run, but such cases were likely to be rare and the court must scrutinise assertions that those who had held responsibility for the presentation of the respondent's case at trial had been in some way blind to an opportunity or neglected their opportunities. Any application for permission to appeal should clearly be made to the trial judge; if refused by the trial judge, he or she should set the date by which the notice of appeal must be lodged. Although the general rules of the court allowed 21 days, that period might be either extended or reduced by the trial judge, and 7 days, rather than 21 days, should be the norm in any case subject to the 6 week time limit.

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