Key Issue: Jurisdictional and Welfare Considerations in International Family Law Case WB v VM

Citation: [2024] EWHC 302 (Fam)
Judgment on

Introduction

The case WB v VM: EWHC-Family 2024 302 ([2024] EWHC 302 (Fam)) reflects complex jurisdictional and welfare considerations within the realm of international family law. The case involves an application for the return of a child to England after a unilateral removal by one parent to Jordan, a non-Hague Convention country. The case law exemplifies the application of habitual residence principles and the use of inherent jurisdiction when international protocol does not apply directly.

Key Facts

The child, indicated as ‘R’, was removed from England to Jordan by the father without the mother’s consent. R was habitually resident in England until her removal. The mother sought a return order, initiating proceedings while R was in Jordan. There were no ongoing child welfare proceedings in Jordan.

The case hinged on several key dates for determining jurisdiction: R’s removal on 24 August 2023, the mother’s application on 18 October 2023, and the application’s issue on 30 October. Mediation attempts failed, and direct contact between R and her mother had ceased since the removal.

Central to the court’s analysis were the legal principles surrounding ‘habitual residence,’ which were debated to determine jurisdiction in the absence of a governing international convention like the Hague. Key considerations stemming from case law included:

  1. The habitual residence of a child is a question of fact that should not be complicated by legal sub-rules ([Re B [2016] EWHC 2174 (Fam)]).
  2. A child’s habitual residence corresponds to the place which reflects some degree of integration by the child in a social and family environment, as established in A v A and confirmed by Supreme Court authority.
  3. A child will usually have the same habitual residence as the parent(s) who primarily care for them, barring any compelling evidence of early integration elsewhere.
  4. The concept of ‘habitual residence’ changes when a child moves from a Contracting State to a non-Contracting State. Per Peel J’s decision in H v R and the Embassy of the State of Libya [2022] 2 FLR 1301 and Re London Borough of Hackney v P and Others [2023] EWCA Civ 1213, habitual residence does not shift to the non-Contracting State; instead, national law would then apply.

Applying these principles, the court determined that the child was habitually resident in England at the time of the application, validating jurisdiction under domestic law, specifically sections 1, 2, 3, and 7 of the Family Law Act 1986 (FLA 1986). The court rejected an application for a stay of proceedings, as Jordan had no ongoing welfare proceedings.

Outcomes

The court held that it has jurisdiction to hear the mother’s application under Part 1 of the FLA 1986. The court found the application goes beyond a simple return request, aiming at substantive child arrangements, thus falling within s.1(1)(d) of the 1986 Act. Despite the acknowledged unilateral removal by the father, the court did not immediately issue a return order due to concerns about enforceability and the potential impact on the child’s relationship with both parents.

Conclusion

The court’s analysis in WB v VM: EWHC-Family 2024 302 squarely addresses the nuanced interplay between jurisdiction determination under national law and habitual residence principles when international conventions are not applicable. Although a return order was not issued, the court’s recognition of its jurisdiction underlines the enduring relevance of fundamental legal principles such as the ‘habitual residence’ in modern family law disputes. The decision showcases the court’s cautious exercise of the inherent jurisdiction, acknowledging enforceability challenges while prioritizing the child’s welfare and the possibility of a negotiated resolution. The adjournment for further mediation underscores the preference for collaborative rather than contentious outcomes in such cross-border cases.