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CONTACT/RESIDENCE: H v D [2007] EWHC 802 (Fam)

Date:4 APR 2007

(Family Division; Sumner J; 4 April 2007)

The father had succeeded in obtaining the return of the two children to Venezuela following the mother's abduction and all issues relating to the children were before the Venezuelan courts. However, after an incident in which the mother was shot at and injured by a hired gunman, she removed the children from Venezuela. Although the mother was in breach of an order of the Venezuelan court, the English court refused to order the summary return of the children, having accepted the mother's Art 13B defence that returning to Venezuela would place the children in an intolerable situation. (Re D (Article 13B: Non-Return) [2006] EWCA Civ 146, [2006] 2 FLR 305.) The children were made wards of court. The mother was seeking a residence order; the father wanted direct contact with the children, although he also challenged the jurisdiction of the English court, relying upon the Venezuelan proceedings. The father then attempted to abduct one of the children; he was taken into police custody and the mother and the children were taken to a safe house at an address unknown. The police considered the threat to the mother and the children to be so high that it would be unsafe and dangerous for the mother to attend court; the father declined the invitation to attend, although he had been made available. The father wished to withdraw his application for contact with the children, and to take no further part in proceedings.

Unusually, although there was no dispute before the court, a judgment was provided for the benefit of the father, and for the benefit of the Venezuelan court. The children remained wards of court in the care of the mother. No one was to remove them from the mother and the father was prevented from communicating with them, or going within 100 metres of their home or school. The court had jurisdiction to make the orders sought, notwithstanding the concurrent Venezuelan proceedings; there was a clearly exercisable inherent jurisdiction in the English High Court to protect children physically present within its jurisdiction from harm which could be exercised irrespective of the proceedings in which the need to protect the children arose; it could be exercised if there were concurrent proceedings in another jurisdiction, and even if the child's presence was transient, provided the risk to the child's well-being had been established. These children were in clear need of protection, and that amounted to a good reason in their welfare interest to exercise jurisdiction as their safety required it.