FQ v MQ

Where children are present and settled in England and Wales, and the evidence concerning their current welfare is located here, the court may determine that England and Wales is the appropriate jurisdiction for welfare and parental-responsibility issues. Habitual residence is assessed by considering the children’s integration into the social and family environment. A jurisdiction challenge that has become plainly unnecessary may justify a costs order, particularly where the challenge has caused substantial and avoidable expense.

The application concerned the welfare jurisdiction relating to two children who had been living in England with their mother for eighteen months after the court declined, under the Hague Convention, to return them to the United States. The father had challenged the English court’s jurisdiction over welfare matters but withdrew that challenge shortly before the hearing. The mother sought declarations concerning jurisdiction, arrangements for the children, and an order for her costs. The court had to determine whether England and Wales was the appropriate jurisdiction and whether the father should pay the costs incurred by the unnecessary jurisdiction challenge.

1. The court accepted jurisdiction over the children’s welfare and parental-responsibility matters. The children had been present in England since August 2012 and had become settled here psychologically, educationally and physically. The evidence concerning their current welfare was in England, making this the most appropriate forum.
2. For the purposes of s 3 of the Family Law Act 1986, the children were habitually resident in England and Wales. Their degree of integration and their continuing residence with their mother supported that conclusion.
3. It was in the children’s interests that they remain in England and Wales while any dispute concerning their welfare was determined here. The court approved the draft order, including residence with the mother, agreed contact arrangements, protective provisions and directions for any application the father wished to make under the Children Act.
4. The mother’s costs application was justified. The father maintained a jurisdiction challenge despite opportunities to reconsider it, withdrew it only shortly before the hearing, and thereby caused nearly £10,000 of avoidable expenditure. The court ordered him to pay £9,283 by 4.00 pm on 7 March 2014.
5. The father remained free to make any further application under the Children Act.

Prior Hague Convention proceedings were described, but no appellate history was stated in the judgment.