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JURISDICTION: Whyte v Whyte [2005] EWCA Civ 858

Date:21 JUN 2005

(Court of Appeal; Buxton, Neuberger and Thorpe LJJ; 21 July 2005) [2006] 1 FLR 400

The parents of a child were divorced in Texas. The mother took the child to Russia, a non-Hague Convention country contrary to an express provision that neither parent was to take the child to a non-Hague Convention country. Court proceedings in Russia resulted in the mother being awarded custody. The father later seized the child and brought proceedings against the mother under the Texas Family Code, chapter 42 rather than the penal provisions of the decree. A final order in favour of the father was made awarding him costs against the mother. The judge at first instance in the UK held that it had no jurisdiction to try a claim for enforcement of a judgment of a Texas court in this country. The Court of Appeal allowed the father's appeal. The courts of this country had jurisdiction to entertain a claim against the mother based on the chapter 42 decree of the Texas Family Court. That the father chose to proceed under chapter 42 rather than the more limited recourse provided by the divorce decree did not affect the mothers original submission to the penalties of the Texan court. Chapter 42 was part of the Texas Family Code and was an inherent part of the protection for families whose affairs were regulated by the court. It was impossible to say that she had not submitted to that regime when she submitted to the divorce decree that it enforced.