I (Wardship: Removal From Country of Habitual Residence: Welfare)

Unilateral removal of children from their country of habitual residence without the other parent’s consent may be unlawful, but the resulting wrongdoing does not determine the later welfare decision. The court must decide residence by assessing the children’s welfare at the time of the hearing. Stability, settled circumstances, educational progress, wishes and emotional needs may justify maintaining the existing arrangement, even where the children were wrongfully removed. The court should also address the harm caused by separation and family influence by requiring arrangements that promote a positive and meaningful relationship with the absent parent.

The case concerned four children of parents who had lived in Pakistan. Three children were brought to England in 2011 and 2012 without their mother, while the fourth remained initially in Pakistan. The mother later came to England and sought arrangements under which the children would live with her. The court made findings that the father and his family had arranged the removals without the mother’s consent, that she had been forcibly separated from the children, and that the children had been exposed to adverse influence against her.

The central issue was whether, notwithstanding those findings, the children’s welfare required them to move from their established home with their father and paternal aunt to live with their mother.

1. Findings concerning removal. The mother had not consented to the children being brought to England to live there. The authority letter did not provide that consent. The removals in 2011 and 2012 were unilateral and unlawful, and had grave and lasting consequences for the children’s relationship with their mother.
2. Findings concerning the family relationships. The mother had been ejected from the paternal family home rather than leaving voluntarily. She was a caring and committed parent. The prolonged absence of contact, together with the father’s and paternal aunt’s negative influence, had caused the children to behave in a hostile and unloving manner towards her.
3. Welfare assessment. The wrongful conduct did not by itself require a change of residence. The relevant question was what arrangement served the children’s welfare in the late summer of 2014. The children had lived in England with their father and paternal aunt since 2011, albeit with interruptions. They were settled, progressing well at school, secure in their current home, and had their physical needs met. Their wishes to remain there were a relevant factor.
4. Outcome and future arrangements. Moving the children to the mother’s proposed home would not be in their best interests at that stage. They were to remain living with their father and paternal aunt. The parents were expected to pursue shared parenting, involve the mother in important decisions, and ensure a proper division of the children’s time. The father and his family were required to support the rebuilding of trust and the children’s loving relationship with their mother.