Re G (Abduction: Striking Out Application)
| Jurisdiction | England & Wales |
| Judgment Date | 11 January 1995 |
| Court | Family Division |
CONNELL, J
Child abduction – children brought to England from America by mother – father belatedly commencing proceedings under Hague Convention – father then delaying his prosecution of those proceedings – whether proceedings should be struck out.
The mother was American and the father was English. They married in the USA in 1983 and there were four children of the marriage. The family lived on occasions in the USA and on occasions in the UK. Between 1990 and 1992 the mother and children remained in England. In May 1992 they went to the USA. The father filed for a divorce in Florida and in June 1992 an order was made that the temporary residence of the children should be with the mother and that the father should have reasonable contact. The order further provided that neither party should remove the children from the State of Florida pending further order of the court. Notwithstanding that order, on 16 June 1992 the mother and children came to England. Some 13 months later, in July 1993, the father applied to the court in Florida to compel the mother's return. In December 1993 the mother applied in England for residence and prohibited steps orders. Later in December 1993 the father issued proceedings in England: first an application under the Children Act 1989 for contact, and second an application under the Hague Convention for the return of the children to Florida. On 29 December 1993 directions were given. No further steps were taken by the father under the Convention proceedings until October 1994 when his solicitors applied for a directions hearing. On 5 December 1994 directions were given and the current hearing date was fixed.
The mother applied to strike out the father's application under the Hague Convention.
Held – granting the mother's application: The children had been in England for two-and-a-half years. There had been a significant delay between the children coming to the jurisdiction and the father instituting Hague Convention proceedings. Further, since the issue of those proceedings, they had not been conducted with the expedition which was invariably appropriate to such proceedings. By the terms of Article 12 of the Convention, as the children had been in England for more than 12 months, the court retained jurisdiction to entertain an application under the Convention and had a discretion as to whether or not it should make an order under the Convention. A demonstration that the children were settled in their new environment was a factor which the court could properly consider when deciding whether or not to make an order under the Convention. The hearing of the proceedings under the Children Act 1989 was due to take place in about two months' time and at that hearing the question of what was in the best interests of the children would
be at the forefront of the mind of the court. In all the circumstances, the failure of the father to conduct the Convention proceedings with due diligence and speed led to the conclusion that those proceedings had not been properly prosecuted and now amounted to an abuse of the process of the court. Accordingly, an order would be made striking out those proceedings.
Statutory provisions referred to:Child Abduction and Custody Act 1985, Sch 1: The Convention on the Civil Aspects of International Child Abduction (the Hague Convention), Article 12.
Family Proceedings Rules 1991, r 6.10.
Henry Martineau for the father.
Henry Setright for the mother.
MR JUSTICE CONNELL.Before the court this morning is an application made by the mother to strike out an application made by the father under the Hague Convention and under the provisions of the Child Abduction and Custody Act 1985. The background history is somewhat complex. I shall refer only to those dates in the chronology which appear to the court now to be relevant to the decision which falls today.
The mother of the four children with whom I am concerned is by background American; the father is English. That perhaps is an irony in view of the respective stances of the parents...
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Re S (A Child) (Abduction: Settlement)
...acquiescence: settlement)[2008] EWHC 1525 (Fam), [2008] 3 FCR 718, [2008] 2 FLR 1270. G (abduction: striking out application), Re[1996] 1 FCR 173, [1995] 2 FLR 410. G (abduction: withdrawal of proceedings, acquiescence, habitual residence), Re[2007] EWHC 2807 (Fam), [2008] 1 FCR 1, [2008] 2......