H (Father) v B (Mother)

British citizenship may provide a theoretical basis for jurisdiction over children, but jurisdiction will be exercised only where the circumstances justify it. The assessment is fact-sensitive and unusual cases require particular caution. Habitual residence depends on the child’s integration in a social and family environment. Prolonged residence abroad may mean that children are no longer habitually resident in England, even if their retention was initially unlawful. The English court should avoid intervening where a foreign court is already seised of the dispute, especially where the proposed order would have significant consequences for the children and the applicant can pursue relief locally.

The father sought the return from Bangladesh of his two children, who had been born in England and were British citizens. The children had lived in Bangladesh since 2008. Proceedings concerning custody and related relief had already taken place, or remained ongoing, in Bangladesh. The mother did not participate in the English proceedings.

The father argued that jurisdiction arose under the Family Law Act 1986 because the children were habitually resident in England, or alternatively from their British citizenship following Re A (Children) [2013] UKSC 60. He also sought orders requiring their return to England.

1. Habitual residence. The children were not habitually resident in England when the proceedings were issued. Applying the European Court’s integration test, England could not sensibly be regarded as the place reflecting their integration in a social and family environment. They had left at a very young age and had spent nearly five years in Bangladesh. That conclusion applied even assuming that their retention in Bangladesh had initially been unlawful.
2. Citizenship jurisdiction. Following Re A (Children) [2013] UKSC 60, British citizenship supplied at least a theoretical basis for jurisdiction. The circumstances in which that jurisdiction should be exercised would be unusual and depended on the facts.
3. Appropriateness of intervention. It was inappropriate to claim jurisdiction where the Bangladeshi court had long been seised of the dispute, the father could pursue his case there, and he had apparently taken no active local steps to enforce the 2011 custody order. The possible persuasive value of an English order carried no significant weight.
4. Relief. Even if habitual residence in England had been established, the court would not have made the requested peremptory return orders. Orders affecting children beyond the court’s territorial jurisdiction should be made only in proper cases, so that such orders and requests do not fall into disrepute. The court declined to exercise its wardship jurisdiction and dismissed the proceedings, expressing no view on the parents’ dispute or the children’s welfare.