J v E (No2)(Case Management)
[2024] EWFC 107
J v E (Habitual Residence)
8 February 2024
[2024] EWHC 196 (Fam)
High Court
A mother took her daughter from England to Zambia. The father wanted her back. The court decided the daughter still belonged in England because she hadn't properly settled in Zambia yet. The court also said England was the best place to sort out the problems, even though there were accusations of abuse, because it's where everyone involved can be easily heard. So the mom has to bring the daughter back to England.
Key Facts
- •A, a British girl born in March 2021, was taken by her mother, E, from England to Zambia in March 2022.
- •The father, J, applied for A's return to England.
- •The mother alleged sexual abuse by the father in September 2022, leading to police investigation and charges in Zambia.
- •The father denies the allegations and claims police corruption in Zambia.
- •The Court of Appeal remitted the case to the High Court for a rehearing on habitual residence.
- •The High Court considered habitual residence, forum, and A's welfare.
Legal Principles
Habitual residence is determined by the degree of integration of the child in a social and family environment, a question of fact considering numerous factors.
Various Supreme Court and Court of Appeal cases, including Re B (A Child) (Reunite International Child Abduction Centre Intervening) [2016] AC 606, Re L (A Child) (Habitual Residence) [2014] AC 1017, Re R (Children) [2016] AC 76, and Re M (Habitual Residence: 1980 Hague Child Abduction Convention) [2020] 4 WLR 137.
In determining forum conveniens, the court considers which forum is more suitable for the interests of all parties and the ends of justice, with the child's best interests being an important consideration.
Spiliada Maritime Corporation v Consulex [1997] AC 460.
In welfare cases, the child's best interests are paramount. While a return to the habitual residence is a likely starting point, it's not a presumption, and the court considers all relevant factors.
Re J (Child Returned Abroad: Convention Rights) [2006] 1 AC 80, Re NY (A Child) [2019] UKSC 49, A (Children)(Summary Return: Non-Convention State) [2023] 1 FLR 1229.
Outcomes
The High Court found that A was habitually resident in England at the time of the father's application.
Despite the mother's connections to Zambia and A's time there, A's strong ties to England (birth, home, family, etc.) and the lack of pre-planning for a move to Zambia outweighed other factors. The court found insufficient integration in Zambia by the relevant date.
The court refused to stay the proceedings in favour of Zambia.
England was deemed the natural forum due to A's habitual residence, ongoing proceedings, and the mother's intention to bring further proceedings in England. The court felt it was better equipped to handle a fact-finding hearing regarding the allegations of abuse.
The mother was ordered to return A to England by February 22nd, 2024.
This was deemed to be in A's best interests, considering the emotional harm caused by the separation from her father and the need to resolve the welfare dispute in a jurisdiction where both parents can participate fully. The court acknowledged the disruption to A but felt the benefits outweighed the drawbacks.