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(Family Division; Hedley J; 24 May 2007)
The parties were British citizens who married and lived in the UK with their child, before moving to France. The marriage broke down and the father remained in France while the mother and child returned to the UK. The child subsequently went to stay for a holiday with the father in France. The father did not return the child.
The French court found that there had been an unlawful retention under Art 3 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention) but declined to order a return under Art 13(b) on the basis of the child's wishes. Divorce proceedings were subsequently commenced by the mother in the UK and the father in France.
The questions for the court were: whether it had jurisdiction to entertain the divorce proceedings under Art 3 of Council Regulation (EC) No 2201/2203 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (2003) OJ L 338/1 (the Regulation); whether it was first seised of the case under Art 19 of the Regulation; and if so, whether it should either stay the proceedings on the basis of forum non conveniens or give directions as to the conduct of the divorce and/or proceedings under Children Act 1989. If the court did not have jurisdiction and/or was not first seised of the case, should it give directions under Art 11(7) of the Regulation?
The wife was able to bring the petition within Art 3 of the Regulation: the husband was unable to demonstrate with the strict cogency required that he had acquired a domicile of choice in France and therefore retained his domicile of origin, England and Wales. On the evidence the French court was the court first seised of the matter. The proceedings in the Family Division would therefore be stayed. The stay would be reviewed if a return order was made in the Hague Convention proceedings. Directions would be given in respect of the mother's Art 11(7) application but no steps would be taken without a further court order until her appeal against the French non-return order had been determined. A CAFCASS child and family reporter would be appointed to report on the child's wishes and feelings and understanding of the issues involved, but the child would not be made a party at this stage.
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