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21 DEC 2006

RESIDENCE: Re L (Residence: Jurisdiction) [2006] EWHC 3374 (Fam)

(Family Division; Sumner J; 21 December 2006)

One of the two children had been born in the UK, the other had been born after the parent's separation in the mother's country of origin, Panama. The father had eventually abandoned his application for a residence order in relation to the eldest child, and by agreement the eldest child had left England to join the mother and the younger brother in Panama. The agreement was embodied in a consent order which included permission to the mother to remove the elder child from the jurisdiction, and arrangements for contact between the father and both children; it also provided for a review of the contact arrangements almost a year later. In the divorce proceedings a decree nisi had been granted, but not a decree absolute; the outstanding issue was the financial relief settlement. Before the review date the father sought a residence order in relation to both children, because of concerns about the elder child's lack of progress in Panama.

There was always a residual jurisdiction in relation to a child who had been resident in England but who was in the care of a parent resident abroad with the recent consent of the other parent, but the circumstances in which that jurisdiction would be exercised would be very limited. Otherwise, as neither child was habitually resident in the UK, the court had jurisdiction only if the father's application arose in or in connection with matrimonial proceedings. Although the matrimonial proceedings were continuing, the children's element had already been decided. It was not appropriate to reopen that issue within a year, although the court would have jurisdiction if an urgent and serious issue arose over child protection. It would be wrong to permit the father to reopen the question of residence within the English jurisdiction unless there were compelling grounds to do so. There were no such compelling grounds. The court's power to vary its own orders was to be used sparingly in the international context where the issues had been resolved and implemented and jurisdiction passed to another State. England was not the appropriate forum for determining residence issues in this case.

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