JK v KC

A child’s habitual residence cannot ordinarily be changed unilaterally by one parent exercising parental responsibility through a wrongful removal. The court’s jurisdiction is assessed at the relevant date under Brussels II Revised or, where that Regulation does not apply, under the Family Law Act 1986. A subsequent change of habitual residence does not automatically extinguish an established English jurisdiction. Any stay must be considered under the statutory forum conveniens jurisdiction, weighing all relevant circumstances. The welfare of the children and habitual residence are important factors, but neither is necessarily conclusive. Imprisonment does not suspend parental responsibility or remove a parent’s capacity to object to removal or seek contact. A summary dismissal is unavailable merely because another country may now be the more appropriate forum.

The children, who had been habitually resident in England and Wales, were removed to the United States by their father after the parents’ arrest. The mother, who was subsequently convicted of murder and imprisoned, commenced wardship proceedings seeking contact and initially the children’s return. The children’s whereabouts remained uncertain and the father had not been served or represented.

At a directions hearing, Cafcass questioned whether the English court retained jurisdiction because of the passage of time, the children’s apparent life in the United States, and the mother’s acceptance that they might remain there. The court considered jurisdiction under Brussels II Revised and the Family Law Act 1986, and whether the proceedings should be stayed in favour of the United States.

1. Jurisdiction. On the information available, the court had jurisdiction under Brussels II Revised if it was seised while the children were habitually resident in England and Wales. If the Regulation did not apply because service had not effected seisin, jurisdiction was available under section 3 of the Family Law Act 1986, provided the children were habitually resident in England and Wales when the proceedings were issued.
2. A child’s habitual residence cannot ordinarily be changed unilaterally by one parent with parental responsibility through a wrongful removal. The possible effect of the passage of time did not justify concluding at this stage that the English court had lost jurisdiction. Any agreement capable of proroguing jurisdiction had to satisfy the requirements of Brussels II Revised.
3. Wardship constituted an exercise of the High Court’s inherent jurisdiction with respect to children and fell within the relevant Part 1 jurisdictional provisions. The court rejected the submission that section 3 of the Family Law Act 1986 applied only to conflicts between the United Kingdom jurisdictions.
4. There was no power to dismiss the proceedings summarily merely because the case had become closely connected with the United States. Section 5(1) applied only where the matter had already been determined elsewhere. A stay under section 5(2) required consideration of the appropriate forum and could not properly be decided without a merits-based inquiry and participation by the father.
5. The forum conveniens question required a broad balance of convenience. The relevant considerations included the procedures available, the need for the children to be present, representation, prospects of an early hearing, financial and practical ability to litigate, representation of the children, and litigation already undertaken. No single factor was conclusive. The inability of the imprisoned mother realistically to litigate in the United States, the absence of proceedings there, the existing English proceedings and the likely enforceability of an English contact order weighed against a stay.
6. Imprisonment did not suspend parental responsibility or extinguish rights of custody. It did not, in principle, prevent the mother from seeking contact. The merits of contact remained a welfare question, taking account of the children’s wishes and feelings and the need for professional assistance.
7. The court declined to grant a stay on the present information. The father was given liberty to apply and was to be served. Pending further order, he was restrained from removing the children from New York State, New York or their current address to live elsewhere.