High Court Addresses Child Abduction and Habitual Residence in Landmark Case KH v MB

Citation: [2023] EWHC 3194 (Fam)
Judgment on

Introduction

In the recent case of KH v MB [2023] EWHC 3194 (Fam), the High Court of Justice tackled complex issues pertaining to child abduction, habitual residence, and the exercise of the inherent parens patriae jurisdiction for the return of a child wrongfully removed from the United Kingdom to a non-Hague Convention country. This case offers a rich analysis of factors that determine a child’s habitual residence, the impact of wrongful removal on jurisdiction, and the circumstances that compel the exercise of the inherent jurisdiction for the protection of a child’s welfare.

Key Facts

The case concerned L, a boy born in 2019, who was wrongfully taken by the respondent father from the UK to Algeria, a country not party to international child protection conventions. The applicant mother sought an order under the inherent jurisdiction for L’s summary return to England and her sole care. The court had to determine jurisdiction based on L’s habitual residence and assess the necessity of invoking the parens patriae jurisdiction in L’s best interests.

Habitual Residence

The court emphasized that habitual residence is a question of fact, focusing on the child’s integration into a social and family environment, as elucidated in Re B (A Child) and Re LC. Intentions of the parents are merely one of many relevant factors, not determinative in themselves. The stability of the child’s residence, not its permanence, and the child’s circumstances immediately before removal are pertinent in determining habitual residence. The court concluded that L’s habitual residence was Morocco at the point of wrongful removal, having transitioned to Algeria before the proceedings commenced.

Wrongful Removal and Article 7 of the 1996 Hague Convention

The case touched on the contentious interpretation of Article 7(1) of the 1996 Hague Convention, which retains jurisdiction in the state from which a child was wrongfully removed until the child acquires a new habitual residence. The court acknowledged varying interpretations of Article 7(1) but ultimately did not rest its decision on this provision since the habitual residence had changed to Algeria during the proceedings.

Exercise of the Inherent Jurisdiction (Parens Patriae)

The use of the inherent jurisdiction in international child abduction cases is reserved for compelling circumstances that necessitate its exercise, as mandated by Re M. The court found compelling reasons to order L’s return to England, emphasizing the child’s continued separation from the mother, consequential harm to L, obstructed access to the mother, and the Algerian legal system’s inability to effectuate a return order without the father’s consent.

Outcomes

The court ultimately decided it was necessary to exercise the inherent jurisdiction to return L to England for the following key reasons:

  1. L was estranged from his primary caregiver mother without meaningful contact with her.
  2. The mother was unlikely to effectively pursue legal avenues in Algeria due to financial constraints, potential legal limitations, and valid concerns for personal safety.
  3. The best interests of the child were at the forefront, as highlighted by the welfare considerations under section 1(3) of the Children Act 1989.

Conclusion

KH v MB [2023] EWHC 3194 (Fam) is a landmark case that reinforces the court’s role in safeguarding the welfare of children who hold UK citizenship, regardless of their geographic location. It serves as a reminder of the crucial balance between factual circumstances and legal principles in determining a child’s habitual residence and the pressing need to exercise the parens patriae jurisdiction in cases where a child’s separation from their primary caregiver and lack of meaningful contact with them may result in significant harm to the child. This case also underpins the essential nature of swift and decisive action in instances of international child abduction.