A v A

The nationality jurisdiction may be exercised where a child’s habitual residence is not established, but it requires extreme circumspection. Exceptionality is not a separate legal test. The decision depends on the circumstances of the particular case and must be guided by the factors identified by the Supreme Court. Relevant considerations include the children’s connections with the jurisdiction, coercion affecting their presence abroad, the practical ability of the left-behind parent to litigate abroad, and the need to determine the future of siblings together. A late concession to return children must be scrutinised on its merits. Ancillary financial relief may be withheld where disclosure is inadequate and release could facilitate further obstruction.

The judgment followed a remittal from the Supreme Court in A v A (Children: Habitual Residence), reported at [2013] 3 WLR 761. The Supreme Court had held that the youngest child’s habitual residence in England was neither established nor disproved, but that the mother could rely on his British nationality as a jurisdictional basis. The issue was whether the child, who had never visited England, should nevertheless be returned with his three siblings.

The father had recently conceded that all four children should return, but the court had to assess that concession and determine the appropriate forum for deciding the children’s futures.

1. Return order. The father was directed to bring all four children to this jurisdiction immediately and to take all steps within his power to implement their return. The children were not to be removed thereafter without the agreement of the court.
2. Nationality jurisdiction. Where habitual residence is not established, the court may rely on nationality jurisdiction under Article 14 of Brussels II Revised and the jurisdiction retained by the 1986 Family Law Act. The court must act with extreme circumspection, but exceptionality is not the test. The exercise of jurisdiction depends on the circumstances of the particular case.
3. Application of the Supreme Court’s guidance. The judge treated the six factors identified by the Supreme Court as directive. The older children had spent their lives in England, the father’s principal allegiance and home were there, and the children were in Pakistan only because of coercive conduct. The mother would face serious practical and financial disadvantages in litigating in Pakistan, including the likely opposition of the father’s family and limited support. The futures of the sibling group should be decided together.
4. The children’s wishes and feelings were relevant to the eventual welfare decision, but were not a barrier to return or part of the present jurisdictional evaluation. Given the father’s continuing influence, the court considered that the children might be unable to express an independent voice in Pakistan.
5. The court would have ordered return even without the father’s concession. The concession was therefore not simply rubber-stamped.
6. Freezing order. The application for release of frozen funds was rejected. The father had not provided a clear and accurate account of his resources, and there was a material risk that release would facilitate further obstruction or delay. No funds were to be released before the children returned unless circumstances demonstrated that release was appropriate.

• Supreme Court: The issue concerning the youngest child was remitted to the High Court after the Supreme Court’s judgment, reported at [2013] 3 WLR 761.
• High Court (Family Division): The court ordered the return of all four children and refused the father’s application for release of frozen funds.