K (A Child) (Retention in non-Hague Convention State), Re
[2023] EWHC 3427 (Fam)
WB v VM
14 February 2024
[2024] EWHC 302 (Fam)
High Court
A mother's application to bring her daughter back from Jordan, where her father took her without permission, was heard in an English court. The court decided it could handle the case even though Jordan isn't part of international agreements about child custody. Instead of immediately ordering the child's return, the court wants the parents to try mediation first to see if they can agree on how to have the daughter visit both of them.
Key Facts
- •Application for a return order for R (born 2022) who was taken from England to Jordan by her father without the mother's consent.
- •R holds British and American passports and is included in her father's Jordanian Family Book.
- •The father obtained a Jordanian court order preventing R's removal from Jordan.
- •Mediation between the parents failed.
- •Jordan is not a signatory to the Hague Conventions of 1980 or 1996.
- •The mother applied for a return order on 18 October 2023 (issued 30 October 2023).
Legal Principles
Jurisdiction to hear a return order application when the child's habitual residence is in a non-Hague Convention signatory state.
Peel J’s decision in H v R and the Embassy of the State of Libya [2022] 2 FLR 1301, approved by the Court of Appeal in Re London Borough of Hackney v P and Others [2023] EWCA Civ 1213
Determination of a child's habitual residence.
Re B [2016] EWHC 2174 (Fam); In re M (Children) [2020] EWCA Civ 1105; A (A Child) [2023] EWCA Civ 659; In re LC (Children) [2014] AC 1038; Re R (Children) [2016] AC 76
Jurisdiction under s.1(1)(d) of the Family Law Act 1986.
Family Law Act 1986
Stay of proceedings under s.5(2)(a) of the Family Law Act 1986.
Family Law Act 1986
Welfare of the child as the paramount consideration in determining whether to make a return order.
Re S (Children) [2021] EWCA Civ 1223
Cautious approach to making orders under the Inherent Jurisdiction when children are in the jurisdiction of other courts.
Re M (A Child) [2020] EWCA Civ 922
Outcomes
The court had jurisdiction to hear the application.
R was habitually resident in England and Wales at the time the application was made, even though her habitual residence subsequently shifted to Jordan. The application also fell within s.1(1)(d) of the Family Law Act 1986.
The court declined to make an immediate return order.
The court was concerned about the lack of enforceability of an order against a non-Hague Convention signatory state and the potential for the order to worsen the relationship between the parents, harming R's welfare. The court considered further mediation necessary before deciding on a return order.