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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> AT v SS (No 2) [2015] EWHC 3328 (Fam) (18 November 2015) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2015/3328.html Cite as: [2015] EWHC 3328 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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AT |
Applicant |
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- and - |
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SS (No 2) |
Respondent |
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Mr Main-Thompson (instructed by Duncan Lewis) for the Respondent
Hearing dates: 13 November 2015
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Crown Copyright ©
Mr Justice MacDonald:
INTRODUCTION
BACKGROUND
a. The Dutch Childcare and Protection Board (CCPB) has obtained the equivalent of a 12 month care order which gives the CCPB authority to place S in foster care if her returns to the jurisdiction of Holland without his mother;
b. A further hearing in the Dutch proceedings will take place on 23 November 2015;
c. The Dutch social worker for S will arrive in England on 17 November 2015 to collect S and to return him to foster care in Holland.
THE LAW
"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith."
"It is perhaps helpful to remind those engaged in Hague Convention applications about the position of undertakings or conditions attached to an Art 12 order to return. Such requirements are to make the return of the children easier and to provide for their necessities, such as a roof over the head, adequate maintenance, etc, until, and only until, the court of habitual residence can become seized of the proceedings brought in that jurisdiction. In Re C (A Minor) (Abduction) [1989] 1 FLR 403, Lord Donaldson MR said at p 413: 'Save in an exceptional case, our concern, i.e. the concern of these courts, should be limited to giving the child the maximum possible protection until the courts of the other country, Australia in this case, can resume their normal role in relation to the child.' This court must be careful not in any way to usurp or to be thought to usurp the functions of the court of habitual residence. Equally, the requirements made in this country must not be so elaborate that their implementation might become bogged down in protracted hearings and investigations, as was suggested by Sir Thomas Bingham MR in Re M (A Minor) (Child Abduction) (above) at p 397. Undertakings have their place in the arrangements designed to smooth the return of and to protect the child for the limited period before the foreign court takes over, but they must not be used by parties to try to clog or fetter, or, in particular, to delay the enforcement of a paramount decision to return the child. It would be helpful if realistic time-limits for the compliance with the undertakings were included in the orders to return the child, but in the absence of a specified time, clearly the court would consider a reasonable time and not allow the case to drag on with repeated applications to the court."
DISCUSSION
CONCLUSION