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11 Children

Adrian Briggs

From: Private International Law in English Courts 2e (2nd Edition)

Prof Adrian Briggs

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 13 April 2024

Habitual residence — Rights of custody — Children — Legitimacy and adoption

This chapter deals with the private international law of children: both the power of the English courts in relation to children and the effect of foreign proceedings and judgments in relation to children and their custody, welfare, and return. The point of departure is to consider the rules determining the habitual residence of a child who may be too young to have any independence, or even intention, in the determination of their residence. The manner in which the various factors (and non-factors) are balanced and evaluated is examined. The jurisdiction of an English court to make orders is examined by reference to domestic law as well as the various Hague Conventions given force in English law. The effect on English proceedings of orders made by foreign courts, in states party to and not party to an international convention, is examined with particular reference to the principle that an English court must be guided by the best interests of the child. The private international law of child abduction is also examined, the well-intentioned legislative interventions being shown to be only partially satisfactory. The question whether these issues are susceptible to being regulated by rules of private international law is raised.

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