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- The father appealed from the dismissal of his application under the 1980 Hague Convention. The judge had decided that the child was habitually resident in Australia rather than France at the date of the retention in England and Wales, and thus in her view the Hague Convention did not apply. The Court of Appeal determined that the child had been habitually resident in France, but, since it was an issue in other pending cases, Moylan LJ addressed the issue of principle: whether there was power under the 1980 Convention to return a child to a state other than that in which they had been habitually resident. In Moylan LJ's view, "the 1980 Convention applies whenever the child is habitually resident in a Contracting State, other than the requested state, at the date of the alleged wrongful removal or retention", and "there is power under the 1980 Convention to order that a child be returned to a third state". This question had been expressly considered at the time of the convention's drafting and a proposal that the return should always be to the state of habitual residence had not been adopted. To confine Article 12 as suggested would fail to protect children from the harmful effects of their abduction. While Baker LJ and Phillips LJ agreed as to the child's habitual residence in France, they declined to express an obiter view on the issue of principle. Baker LJ warned of the danger of judges thinking that the degree of integration in a second country had to be equivalent to that enjoyed in the first for a child to acquire habitual residence. Judgment, 18/09/2020, free
- An order had been made for the nine-year-old son to be returned to Russia. The father had arranged for the child to make an application for asylum, and one of the questions to be resolved was now whether this prohibited the enforcement of the return order. Mr Darren Howe QC, sitting as a deputy High Court judge, adjudged that the commencement of an asylum application by or on behalf of a child did indeed prohibit the enforcement of a return order made under the Hague Convention 1980. No exception was available under the law even if the court had concluded that the asylum application was a sham and a tactic to delay the return order. He ordered a stay of the return order until 15 days after the tribunal's decision upon the asylum application. But if there were thus to be a significant delay, the issue of contact between mother and child in the meantime would need to be addressed. A further hearing as to this would follow. Judgment, 09/09/2020, free
- The mother appealed from a return order made under the 1980 Hague Convention. She contended that the judge had been wrong to decide that the children were habitually resident in Germany at the date of her wrongful retention of them in England. It was submitted on her behalf that the judge had focused on whether the children had lost their habitual residence in Germany, rather than on the relevant question of whether their residence in England had acquired the requisite degree of integration and stability. In Moylan LJ's view, the appeal had to be allowed. On a proper application of the appropriate test, the children had been habitually resident in England at the date of their retention, and thus the father's application under the 1980 Convention had to be dismissed. Simler LJ and Sir Stephen Richards agreed. Judgment, 25/08/2020, free
- Three applications were before the court: the wife's application for disclosure from the eighth and ninth respondents, in support of her claims under section 423 of the Insolvency Act 1986 and section 37 of the Matrimonial Causes Act 1973; an application by five respondents to be released from their obligations under previous orders; and an application by the eighth and ninth respondents for a case management stay of the proceedings pending the outcome of proceedings in Liechtenstein. Knowles J found that the orders for disclosure directed at the eighth and ninth respondents were necessary to justly and fairly determine the wife's properly brought claim, even though those orders might be contrary to civil and criminal law in Liechtenstein. The risk of prosecution in Liechtenstein was little more than purely hypothetical. The absence of the material in question would very substantially interfere with the wife's ability to pursue her claim and would hamper the court's ability to determine the proceedings fairly. Knowles J refused the application to set aside and vary the previous orders, and refused the application for a stay of the proceedings. Judgment, 17/08/2020, free
- The father applied under the 1980 Hague Convention for the return of his three-year-old son to Australia. The mother resisted the application on the grounds of habitual residence in England, acquiescence, and a grave risk of physical or psychological harm to the child, or his being in an otherwise intolerable situation, if the court required his return to Australia. Theis J decided that the defence on acquiescence would not have succeeded, but the mother had established that the protective measures put in place would not have been sufficient to reduce the risk to a level that fell below the Article 13(b) threshold. Either way, Theis J had already reached the conclusion that the son's habitual residence at the relevant time had been in this jurisdiction, and thus there had been no breach of Article 3 of the Hague Convention. The father's application was dismissed. Judgment, 12/08/2020, free
Latest know-how
- The judge made an order for a summary return to Poland in respect of a 12 year old and her 17 year old brother in what he described as “a hot pursuit case.” Case note, 04/11/2019, members only
- In a tweet: Local expert evidence key to securing temporary leave to remove a child to Brazil (a Hague Convention country with a poor reputation for compliance) for holidays. Case note, 04/11/2019, members only
- A mother’s appeal was dismissed in circumstances in which she had challenged a return order made in respect of the child. Case note, 04/11/2019, members only
- Successful application by a father to secure the return of the parties’ daughter to Latvia. Case note, 04/11/2019, members only
- In brief: A father’s application for further directions to assist in the implementation of a return order made in respect of the parties’ two children, who were to be returned from England to the US, was dismissed on the grounds that the court had no jurisdiction to entertain F’s application. Case note, 04/11/2019, members only
Latest training
- Recording of webinar first broadcast on 23 November 2018. Webcast, 29/11/2018, members only
- Tim Scott QC of 29 Bedford Row tries to make sense of what might happen to international family cases after 29th March next year and reviews a few recent key international finance cases. Recorded September 2018. Webcast, 07/10/2018, members only
- Tim Scott QC from 29 Bedford Row, provides an update to the Maintenance Regulation, 5 years after it came into force. This webcast was recorded on 1 September 2016. Webcast, 02/09/2016, members only
- Audio recording of webinar first broadcast live 26 April 2016 Webcast, 29/04/2016, free
- In this recorded webcast, Tim Scott QC from 29 Bedford Row summarises the main issues when dealing with cases involving financial claims in England following an overseas divorce. Webcast, 15/06/2015, members only
Latest sources
- An updated table of signatories and members states Tool, 02/03/2017, free
- Link to guidance on the Collaborative Family Law website Tool (external), 15/05/2012, free