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CHILD ABDUCT: Re J (Child Returned Abroad: Convention Rights) [2005] UKHL 40

Date:10 MAY 2005

(House of Lords; Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Brown of Eaton-Under-Heywood; 16 June 2005) [2005] 2 FLR 802

Where there is a genuine issue as to whether the child should live here or elsewhere, it is relevant whether that issue is capable of being tried in the courts of the country to which the child may be returned. If it is not, then the court here must ask whether it is in the child's interests for the case to be heard here. There is no extension of Convention concepts to non-Convention States, rather the welfare of the child is crucial and it is for the trial judge to focus on the individual child in the particular circumstances of the case. Here the trial judge was wrong to not take into account the lack of jurisdiction in the home country to enable the mother to bring the child back without the father's consent.