The court accepted a submission that ‘the court cannot be satisfied that it is in the best interests of the child to return it to the court of habitual residence in order that that court may resolve the disputed question unless this court is satisfied that the welfare test will apply in that foreign court’. However, foreign law is presumed to be the same as English law, and it is for the party resisting return to show that there is a difference which may be detrimental to the child’s welfare. In the case before him, it was the lack of any process whereby the mother might gain the right to return to this country with the child, with the result that she and the child might be ‘locked in’ to a life there, which would put at risk the mother’s health and the child’s care.
Judges:
Ward LJ, Lord Woolf MR and Lord Justice Mummery
Citations:
[1998] 1 FLR 231
Statutes:
Hague Convention on the Civil Aspects of International Child Abduction
Jurisdiction:
England and Wales
Citing:
Approved – Re L (Minors) (Wardship: Jurisdiction) CA 1974
The court summarised the principles as to the return of a child to a foreign country without conducting a full investigation of the merits: ‘To take a child from his native land, to remove him to another country where, maybe, his native tongue is . .
Cited by:
Cited – Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 13 November 2022; Ref: scu.228366