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(Family Division, Bodey J, 30 September 2013)
When the parents of the now 3-year-old child separated the mother took the child from their home in Spain and brought him to England without the father's consent. The mother was thereafter granted a residence order by the county court in contravention of the obligation of Art 16 of the Hague Convention to transfer proceedings to the High Court.
During proceedings the mother asserted a defence under Art 13 (b) due to a risk of her prosecution in Spain for allegedly kidnapping the child which would mean she would be unable to care for the child or she would not be able to generate sufficient income in Spain creating an intolerable situation.
Further investigation found that the prosecution of the mother was no longer live but even if there were further proceedings the interests of the child would be taken into account by the prosecuting authorities. In respect of her financial difficulties the father provided a number of undertakings including financial assistance if the mother returned to Spain.
The mother had failed to make out her case under Art 13(b). Her proposal for a suspended return order pending the resolution of relocation proceedings in Spain was rejected was this was not an Art 12 case and no such discretion therefore existed. The mother's fears of potential delay were allayed by the judge offering to refer the case to Black LJ with a view to requesting judicial co-operation in Spain. A return order was granted.
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