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30 NOV 2007

ABDUCTION: Re G (Abduction: Withdrawal of Proceedings, Acquiescence, Habitual Residence) [2007] EWHC 2807 (Fam)

(Family Division; Sir Mark Potter P; 30 November 2007)

The mother wrongfully retained the elder child in the UK while pregnant with the younger child. The father sought the summary return of the child to Canada, but the initial proceedings were withdrawn by a consent order that explicitly referred to an attempted reconciliation between the parents and to the mother remaining in England until after the birth of the younger child. The consent order stated that the habitual residence of the child would continue to be Canada. The attempted reconciliation failed, and the mother then gave birth to the younger child in England. The father brought a second set of proceedings seeking the summary return of both children.

The elder child was to be returned to Canada under the Hague Convention; the withdrawal of the first set of proceedings did not demonstrate acquiescence by the father. Given that the mother had acquired habitual residence in England prior to the younger childs birth, and that the father had expressly agreed that following the birth the younger child should be in the mothers care in England pending any agreement on a return to Canada, the younger child had acquired at birth her mothers habitual residence in England. Nonetheless, the younger child was to return to Canada with the elder child under the inherent jurisdiction, for the whole family situation to be considered by the Canadian courts.

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