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Family Division, Mostyn J
Abduction - Residence order made by French court - Mother removed child - Hague Convention proceedings initiated as opposed to enforcement proceedings under BIIR
5 July 2012
The parents and their three children aged 7, 4 and 2 had lived in France for 4 years when the mother removed them and took them to England. She had already agreed in writing that she would return them after a 2-week holiday but failed to do so. Just prior to their removal the French court made a residence order in favour of the father with provision for contact with the mother and a certificate pursuant to Annex II of BIIR was produced. When the mother failed to return the children the father issued an application under the Hague Convention on the Civil Aspects of International Child Abduction 1980. The mother claimed that: the children were never habitually resident in France; that the father had consented to their removal; that one of the children objected and there was a grave risk of harm if a return were ordered. To date three preliminary hearings before High Court judges had taken place and a full Cafcass report was produced.
Held - adjourning proceedings to allow the father to issue an application for recognition and enforcement under Art 28(1) of BIIR of the French order -
(1) Having regard to: (i) the primacy of the French court in making the welfare adjudication; (ii) the precedence of BIIR over the Hague Convention; (iii) the clear route laid down for recognition and enforcement of the French order, which will only be withheld in most exceptional circumstances; (iv) the probability that were the mother's defences proved that decision would soon be overreached under BIIR either under Chapter III or Art 11(8)/Chapter IV; (v) the terms of the overriding objective paras (d) and (e); and (vi) the terms of s49(2) Senior Courts Act 1981, the judge declined to adjudicate on the Hague application (see para ).
(2) Where there was a residence or other relevant parental responsibility order made in a fellow Member State the route of registration/appeal should normally be adopted (see para ).
Per curiam: Time and again courts were confronted with a similar state of affairs where Hague proceedings had instead been taken. The cost to the tax payer and the demands on court time was heavy and likely to have been completely wasted (see para ).
The Red Book is the acknowledged authority on practice and procedure