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[1 ] This is a defended action of divorce which was commenced in the Sheriff Court in Aberdeen in February 2003. The parties were married in Abu Dhabi on 11 November 1996 . There is one child of the marriage, who was born on 5 August 1997 . The ground upon which divorce is sought is the defender's desertion of the pursuer. Desertion is denied by the defender. In the written pleadings in the action, as adjusted, the pursuer also seeks a residence order that the child of the marriage should live with him, which failing he seeks an order for contact, including residential contact.
[3 ] Having removed herself and the child to London, the defender applied to Willesden County Court for a residence order that the child live with her and a "prohibited steps" order prohibiting the pursuer from removing the child from the care and control of the defender or the jurisdiction of the English courts. On 29 November 2000 the District Judge (Morris) granted that application without the pursuer having been given any notice of the proceedings; but the order was qualified as being "with liberty to apply for variation" on giving notice to the defender's English solicitors.
[4 ] It is not disputed by counsel for the defender - nor the superior English Courts before whom the question has been considered following the pursuer's challenge to the jurisdiction of the English courts - that, on any view, when District Judge Morris made that ex parte order on 29 November 2000 he did not have any jurisdiction to do so. The reason for this unquestionable want of jurisdiction is to be found in the provisions of section 41 of the Family Law Act 1986 which provides:-
becomes habitually resident outside that part of the United Kingdom in consequence of circumstances of the kind specified in subsection (2) below, he shall be treated for the purposes of this Part as continuing to be habitually resident in that part of the United Kingdom for the period of one year beginning with the date on which those circumstances arise.
(2) The circumstances referred to in subsection (1) above exist where the child is removed from or retained outside, or himself leaves or remains outside, the part of the United Kingdom in which he was habitually resident before his change of residence -
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