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Zahra Pabani
Zahra Pabani
Partner - Family Law
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ABDUCTION: Re A (Custody Decision After Maltese Non-Return Order: Brussels II Revised, Art 11) [2006] EWHC 3397 (Fam)
Date:29 NOV 2006

(Family Division; Singer J; 29 November 2006)

The mother's third child had not returned to England from a visit to his father, his brother and sister in Malta. His elder brother had moved to Malta with a drug problem. In the mother's Hague Convention proceedings the Maltese court made a non-return order, after hearing evidence that the child had received a police caution following an incident in which he and friends had broken a window and had stolen a ladder to use as a slide, that the child had seen close relatives smoking cannabis in the family home, and that the child was expressing a strong wish not to return to England. The Maltese court considered that the Art 13(b) defence had been made out, and that the child would be exposed to harm, and placed in an intolerable situation if returned to England.

In what was possibly the first application under Art 11 of Brussels II Revised to come before an English court, the judge ordered the return of the child to England from Malta. Although the father and child had not participated in the English hearing, they had been given every opportunity and encouragement to do so. On the evidence the situation in England was not so risky and so potentially dangerous as to surmount Art 13(b). The court was unpersuaded that the child was genuinely unwilling to return to England, given contradictory communications from the child and in particular the father's refusal to allow the English guardian to contact the child. The judgment was enforceable forthwith, notwithstanding any appeal; a certificate under Art 42(1) of Brussels II Revised was to be issued, rendering the order immediately enforceable without reinvestigation of the merits within the Maltese jurisdiction.