Summary
An application for a summary return of three children to France was filed by the father.
The children were wrongfully retained by their mother in England. The mother had agreed in writing to return the children in France.
On 12th April 2012, the French court had awarded residence to the father, making an order for contact arrangements with the mother.
Instead of applying for the recognition and enforcement of the French order in England, the father commenced proceedings for a summary return of the children under the Hague Convention.
Mr Justice Mostyn declined to adjudicate on the application, and held:
“16 Having regard to (i) the primacy of the French court in making the welfare adjudication; (ii) the precedence of B2R over the Hague Convention ; (iii) the clear route laid down for recognition and enforcement of the French order, which will only be withheld in most exceptional circumstances; (iv) the probability that were I to find the M's defences proved that decision would soon be overreached under B2R either under Chapter III or Art 11(8)/Chapter IV; (v) the terms of the overriding objective paras (d) and (e); and (vi) the terms of 49(2) Senior Courts Act 1981 , I have declined to adjudicate on the Hague application. Instead I have adjourned it to abide the following steps which will now be taken:
i) F will apply, as soon as legal aid can be arranged, for registration under Art 28(1) and
FPR 2010 rule 31.8 . It is expected that this will be done within a week.
ii) This Court will invite the Senior District Judge to deal with the application personally as soon as it is lodged. I am therefore expecting that registration will have been achieved within a week of today.
iii) A booking shall be made in the High Court diary for an apprehended appeal by M against registration. That booking will be for the first available two hour space after the expiration of five weeks from today, and will be certified as fit for vacation business.
17 It is my opinion that where there is a residence or other relevant parental responsibility order made in a fellow member state the route of registration/appeal should normally be adopted. Time and again I have been confronted with a similar state of affairs where Hague proceedings have instead been taken. The cost to the tax payer and the demands on court time is heavy indeed.
And, as I have sought to explain, the time and money is likely completely wasted.[16-17]