Abduction: Unborn Child

Remember to leave the UK in time if the SS are after you when you are pregnant! IF the baby is born abroad, S Ireland (no passports needed) or N.Cyprus (no extradition) are recommended. The following case should ensure that any attempt by the SS to kidnap your newborn will fail!

RE F (ABDUCTION: UNBORN CHILD)

[2006] EWHC 2199 (Fam)

Family Division

Hedley J

25 August 2006

Child abduction – Wrongful removal – Status of foetus – Habitual residence 

Stay of proceedings – Comity

The mother was pregnant when she went to Israel on 4 October 2002. The father alleged that he agreed to her going to Israel on the basis that she would return to resume family life in South Wales after the birth, but that her real intention had been to remain in Israel. The child was born in November 2002. On 3 October 2003 the mother announced her intention to remain in Israel, and she thereafter lived there with the child. On 23 March 2005, Hedley J stayed all proceedings in this jurisdiction in relation to the child. In proceedings in which the father participated, the Israeli court exercised a welfare jurisdiction in relation to the child on 9 June 2005 and in doing so found that she was habitually resident in Israel.

The father also applied to the Israeli court under the Hague Convention on the Civil Aspects of International Child Abduction 1980 for summary return of the child, and sought the assistance of the English court in those proceedings. Notwithstanding the stay, Hedley J permitted trial of a preliminary issue of whether there could have been a wrongful removal or retention of the child within the meaning of Art 3 of the Hague Convention.

Held – declining to make any declaration and refusing to disturb the stay –

(1) The law of England and Wales conferred no independent rights or status on a foetus and it was not possible in law to abduct a foetus so as to constitute a wrongful removal under Art 3 (see para [5]).

(2) Habitual residence was a question of fact. The child had never been present in this country, and to say that she was habitually resident here in October 2003 would be wholly artificial (see para [9]).

(3) In any event, the question of habitual residence was for the requested and not the requesting State, and the Israeli court had already pronounced on the issue. It behoved the English court, on principles both of the Hague Convention and comity, to remain silent on the subject. The English court had no role to play unless and until the child was present in this jurisdiction (see para [10], [13], [14])

Statutory provisions considered

Family Law Act 1986, s 41(1), (2)

Hague Convention on the Civil Aspects of International Child Abduction 1980, Arts 3, 15

Cases referred to in judgment

Al Habtoor v Fotheringham [2001] EWCA Civ 186, [2001] 1 FLR 951, CA

B v H (Habitual Residence: Wardship) [2002] 1 FLR 388, FD

M (Abduction: Habitual Residence), Re [1996] 1 FLR 887, CA

W and B v H (Child Abduction: Surrogacy), Re [2002] 1 FLR 1008, FD

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