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(Family Division; Hedley J; 25 August 2006)
The mother left Wales during her pregnancy, travelling to Israel with the father's consent, but remaining in Israel after the birth. The father sought summary return of the child under the Hague Convention on the Civil Aspects of International Child Abduction 1980. The father's proceedings in England and Wales had been stayed, but the father nonetheless sought the assistance of the court, in the form of a declaration concerning the habitual residence of the mother and child at the time of the birth.
The judge refused to lift the stay on proceedings and refused to grant the declaration sought. While habitual residence might, exceptionally, be possible notwithstanding physical absence, the usual approach on the facts was to look for some physical presence, and this child had never been physically present in the jurisdiction. In any event, the issue of habitual residence was a matter for the courts of the requested state, in this instance Israel, therefore the English court should not rule on the subject.
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