J v E (Habitual Residence)
[2024] EWHC 196 (Fam)
ZZ v AA
6 June 2024
[2024] EWHC 1411 (Fam)
High Court
A father wants his kids back from India where their mother took them. The judge decided the English court is the right place to decide because the children mainly lived in England and most evidence about the mother's claims of abuse is there. The mother didn't show why an Indian court would be better.
Key Facts
- •Mr. ZZ applied for the return of his two sons from India, where their mother, Ms. AA, took them in September 2023.
- •Ms. AA is an Indian national with indefinite leave to remain in the UK, while Mr. ZZ is a British citizen of Pakistani origin.
- •The children were habitually resident in the UK before being taken to India.
- •Ms. AA did not attend court proceedings and did not file a statement of her position.
- •Ms. AA initiated guardianship proceedings in India alleging domestic abuse.
- •The children's visas expired in February 2024.
Legal Principles
Jurisdiction to determine applications for the return of children can be based on the inherent power of the High Court or specific issue order under s.8 Children Act 1989.
Re NY (A Child) [2019] UKSC 49
Under the 1996 Hague Convention, the court of the child's habitual residence has jurisdiction, even if the child was taken to a non-Contracting State.
Re A (A Child)(Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA Civ 659
The relevant date for determining habitual residence is the date of the application.
s7 (c) FLA 1986; London Borough of Hackney v P (Jurisdiction: 1996 Hague Child Protection Convention) [2023] EWCA Civ 1213
Habitual residence requires a sufficient degree of integration in a social and family environment, considering factors like the child's life before and after the move, reasons for stay, nationality, schooling, language, family and social relationships.
Re A [2023] EWCA Civ 659; Re B [2016] UKSC 4
In forum conveniens cases, the burden is on the applicant to show that another forum is clearly more appropriate, considering factors like convenience, expense, witness availability, and the child's welfare.
V v M (A Child) (Stranding: Forum Conveniens: Anti-Suit Injunction) [2019] EWHC 466 (Fam); Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460; De Dampierre v De Dampierre [1988] AC 92; Lubbe v Cape plc [2000] 4 All ER 268; Re K (a child) [2015] EWCA Civ 352; Re S (residence order: forum conveniens) [1995] 1 FLR 314; Re V (forum conveniens) [2004] EWHC 2663 (Fam)
Outcomes
The English court has jurisdiction to hear the application.
The children were habitually resident in England and Wales on the date of the application, satisfying Article 5 of the 1996 Hague Convention and the Family Law Act 1986.
England and Wales is the appropriate forum for determining the dispute.
The family's life was centered in England until the children's removal; most evidence regarding Ms. AA's allegations of domestic abuse is located in England; and the Indian courts have not yet made substantive orders.