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Family Law

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18 MAY 2006

ABDUCTION/CONFLICT OF LAWS: Re M (Abduction: Brussels II Revised) [2006] EWCA Civ 630

(Court of Appeal; Thorpe and Wall LJJ; 18 May 2006)

The judge's conclusions that the 14-year old child objected to returning to France and that he was a child of sufficient age and maturity were not open to challenge. However, the judge had erred in his exercise of the resulting discretion not to return the child; he should not have taken into account welfare considerations which had arisen only because of delays within the English system, particularly given the countervailing welfare concerns about the father's parenting abilities. The judge had also been wrong to give significant weight to the child's misconceived perception that he would not receive a fair hearing in France.

Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility repealing Regulation (EC) No 1347/2000 (Brussels II Revised Regulation) had fortified what were seen as weaknesses or loopholes in the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention) system, through which abductors were escaping, in three ways: (i) an emphasis on protective measures to nullify an Art 13(b) of the Hague Convention defence; (ii) the return of the case to the requesting state in the event of a refusal by the requested state; and (iii) automatic enforcement of return orders throughout the region.

It was important that states bound by the Brussels II Revised Regulation did not undermine its intended effect either in its interpretation or in its application in accordance with the stringent time limits stipulated, in particular the 6 weeks allowed between the lodging of an application and the issue of judgment in the case. The Good Practice Guide published by the European Commission did not have the force of law, but it remained an extremely useful tool for judges and practitioners who approached the Brussel II Revised Regulation without much previous experience. Hague Convention abduction applications which fell within the ambit of the Brussels II Revised Regulation should be headed both under the Child Abduction and Custody Act 1985 and under the Brussels II Revised Regulation. On issue the outside of the court file should be clearly marked to draw attention to the nature of the application. It should also state the date on which the 6-week period would expire in order to draw the attention of the court administration to the hear-by date which stringent compliance with the Brussels II Revised Regulation would require. Although compliance with the stringent requirements of the Brussels II Revised Regulation would generally require the removal of a previously fixed case from the list, the UK, having opted in to the Brussels II Revised Regulation, was bound by it. If not delivering a written judgment the trial judge must expedite the transcript of the extempore judgment and then expedite its approval.

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