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DEXTER DIAS QC (Sitting as a Deputy High Court Judge) (In Private) ____________________
MS C RENTON (instructed by Birmingham Legal Limited) appeared on behalf of the Applicant. MISS R CABEZA (instructed by Dawson Cornwell Solicitors) appeared on behalf of the Respondent. ____________________
Art. 11 obliges judicial authorities are obliged to "act expeditiously in proceedings for the return of the child". Ordinarily, the child should be returned "forthwith" (Art. 12(1)). But as Baroness Hale pointed out in Re D (A Child: Abduction Rights and Custody) [2006] UKHL 51 , at [68], "There are some cases, albeit few in number, where this is not the case".
There are exemptions � "defences" to return - where, to use the language of Art. 13, the requested State "is not bound to return the child". This includes where the child would be exposed to a grave risk of harm or where the child would "otherwise" be placed in an "intolerable situation". The Convention is not blind to this. It should never be mechanistically enforced and become, as Lady Hale put it, "an instrument of harm": Re D. at [52].
I flesh out these governing legal principles at various points of the judgment as necessary, citing key passages from the burgeoning jurisprudence that surrounds the Convention.
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