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Re R (Abduction: Habitual Residence)
[2004] 1 FLR 216
Family Division, Munby J
Hague Convention. Mother and one year old child ordered to return from
England to Germany, Munby J expressing “considerable reluctance”
at having to make the order only because the father had “the letter
of the law on his side”. The Judge commented “if this was
a jurisdiction in which I had any discretion I suspect very strongly
indeed that I would exercise my discretion against the father”.
After only 5 weeks in Germany the German Court allowed the mother and
baby to return to the family home in England.
Under the amended Brussels II Regulation 2201/2003
which came into effect throughout the European Union (except Denmark)
on 1 March 2005 judges now have a wider discretion in Hague Abduction
Convention cases, allowing them to place greater emphasis on the welfare
of the child. Under the new law a similar case would probably be decided
differently today.
Wermuth v Wermuth (No 1)
[2003] 1 FLR 1022
Family Division, Bracewell J
Wermuth v Wermuth (No 2) [2003] 1 FLR 1029
Court of Appeal, Thorpe, Latham and Lawrence Collins LJJ
These were the first two reported cases dealing with the new
Brussels II Regulation 1347/2000 on divorce jurisdiction. They established
that:
1. where divorce proceedings are current in two jurisdictions
to which the Regulation applies, the proceedings in the court first
seised presumptively of jurisdiction shall determine the validity of
those proceedings without interference from the court second seised.
2. maintenance pending suit cannot be ordered under
the Brussels II Regulation.
Wehmeyer v Wehmeyer
[2001] 2 FLR 84
Chancery Division, Mr Registrar James
Held that English bankruptcy proceedings could not be used
to enforce German maintenance arrears, whether or not the German order
was registered in England. However, when the husband moved to Scotland
bankruptcy proceedings there were successful in getting him to pay up.
Bankruptcy can be used to enforce maintenance in Scotland, Germany,
Sweden, Australia and elsewhere but not in England and Wales.
Re L (Children) (Abduction:Declaration) [2001]
2 FLR 1.
Successful application under Article 15 of the Hague Abduction Convention
for a declaration of wrongful removal to facilitate the return of the
children from Germany to England.
Re W; Re B (Child Abduction: Unmarried Father)
[1998] 2 FLR 146
Hague Convention.Family Division, Hale J
Held that the mother's removal of the children from England to Australia
was wrongful as the father's application for a parental responsibility
order was pending. This case extended the protection of children from
abduction.
Re O (Abduction: Consent and Acquiescence)
[1997] 1 FLR 924
Family Division, Bennett J
Hague Convention. The father failed in his application to have child
returned to Australia. The day before the child and mother travelled
to England he had signed a document consenting to the move. His assertion
of duress was rejected by the Judge.
Re B (A Minor) (Abduction) [1994] 2 FLR 249
Court of Appeal, Staughton and Waite LJJ (Peter Gibson LJ dissenting)
Hague Convention. Appeal against order for return of children to Australia
dismissed. David Truex's expert evidence as to "rights of custody" under
Western Australian law was accepted by the majority of a Court of Appeal.
Re A (Minors) (Abduction: Acquiescence) [1992]
2 FLR 14
Court of Appeal, Lord Donaldson of Lymington MR and Stuart-Smith LJ
(Balcombe LJ dissenting)
Hague Convention. Application for return of child to Australia refused.
David Truex gave expert evidence on Australian law as to the likelihood
of a successful application by the mother in Australia for an Order
allowing her and the child to return permanently to England to live.
The case is reported a number of times in respect of several visits
by the parties to the Court of Appeal and the House of Lords.
Note: This case may be decided differently today as
the English law relating to acquiescence has substantially developed
(see Re H (Minors) (Abduction: Acquiescence) [1997] 1 FLR
872 (House of Lords). Also, the Family Court of Australia has decided
that it will now be more difficult than previously to obtain the Court's
permission to move children from Australia to the United Kingdom to
live. (see R v R (1998) FLC 92-820). The High Court of
Australia, however, has stressed that each case must be decided on it's
merits (AMS v AIF; AIF v AMS (1999) FLC 92-852
V v B (A Minor) (Abduction) [1991] 1 FLR
266
Family Division, Sir Stephen Brown P
Hague Convention. Child returned to Australia after expert evidence
from David Truex that the normal injunctive relief was available in
the courts in Australia which would protect the parties in a disputed
situation.
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