The father who had brought proceedings uunder the Hague Convention for the return of M, appealed against an order allowing the use ofblood tests to deermine whether he was M’s father.
Held: The appeal succeeded in the absence of evidence as to the law and practice in Latvia, and: ‘ a determination of paternity is best carried out in a welfare context and by the Court of the child’s habitual residence. In my view such a determination should only be made in the context of a Convention application if it is clear that that is necessary for the purpose of a decision which the Court has to make. That was not so here. In the first place, the Respondent might succeed in showing that the case fell outside article 3 on one of the other bases advanced by her. But, even if she did not, it does not follow that the Appellant’s rights of custody at the material time under Latvian law depended on whether he was the biological father. He was named as the father on the birth certificate; he had acted for most of Lina’s life as a de facto father; and the Respondent had consented to the making of a Court order on the explicit basis that he was the father. It would not be in the least surprising if on any one or more of those grounds he would fall to be treated in Latvian law as having rights of custody at the moment of removal, even if they might subsequently be lost as a result of his being shown not to be the biological father. Indeed I would go so far as to say that they put the burden squarely on the Respondent to show, by reference to specific evidence of Latvian law, that he was not entitled to be so treated.’
Longmore, Underhil, Macur LJJ
[2013] EWCA Civ 1131
Bailii
England and Wales
Children
Updated: 20 November 2021; Ref: scu.515283
