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(Family Division; Singer J; 15 August 2008)
Only if the child's non-return is pursuant to Hague Convention, Art 13, is the home court competent to examine the question of custody of the child, as envisaged by Brussels II Revised, Art 11(7), and it was only such a welfare-based enquiry that could lead to a 'judgment which requires the return of the child', summarily enforceable. A father was not entitled to apply under Art 11(7) when the Portuguese court had refused to return the child under Art 12(2), on the basis that more than one year had elapsed, even though the father had suffered a serious injustice by being deprived of the ability to participate in the proceedings or to appeal. There was no process to 'save' the father's Art 11(7) application by amendment to seek relief under specific provisions of Children Act 1989 and/or the inherent jurisdiction. In any event any such reconstituted application would have had to be stayed if not dismissed, pursuant to requirements imposed on the English court by Brussels II Revised, Art 19(2) and (3). The English court had to defer to the apparent determination of the Portuguese court to proceed with the mother's parental responsibility application, with which it was first seised, unless and until the Portuguese court concluded that it had no jurisdiction.
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