IS (A Minor) v DBS & Anor (Rev 1)

A child who is a ward of court may not be removed from England and Wales without the court’s prior permission, even where every person with parental responsibility consents. Habitual residence is determined by factual reality, including the child’s integration into the country concerned. Parental agreement that a child should retain habitual residence elsewhere cannot displace an English court’s investigation or a contrary determination based on the facts. In cross-border welfare disputes, the court may impose protective restraints and seek a judicial moratorium where competing jurisdictions risk placing the child in breach of one order or the other. The child’s strongly held views and increasing maturity are relevant to the court’s assessment of welfare and contact.

The proceedings concerned IS, nearly 15, whose parents were profoundly estranged. She had lived in England with her mother since 2010, following relocation from Israel under arrangements made by the Israeli and English courts. The Jerusalem Court for Family Matters retained or asserted jurisdiction over aspects of the family dispute and directed that IS and her mother attend a hearing in Israel.

IS opposed travelling to Israel. She had become a ward of the English court on 9 April 2014. The father sought to maintain the position that welfare issues should be determined only by the Israeli court, while the English court considered its jurisdiction and IS’s future relationship with her father. The central issues were the effect of wardship, IS’s habitual residence, the competing jurisdictions, and whether protective orders and a judicial moratorium should be imposed.

1. Wardship and removal. IS became a ward of the court automatically when the wardship proceedings were issued on 9 April 2014. While wardship continued and she remained under 18, no person, including either parent or a third party, could remove her from England and Wales without the court’s prior permission, even with parental consent. The court therefore ordered of its own motion that neither parent should remove her from England and Wales or from her mother’s day-to-day care without permission, subject to agreed safeguarded contact in England.
2. Habitual residence. The court considered habitual residence to involve factual questions centred on the child’s degree of integration into life in the country concerned. An agreement between parents, or an order recording that agreement, could not by itself preserve habitual residence elsewhere contrary to factual reality. The court expressed the provisional view that IS was habitually resident in England, having lived there since 2010, notwithstanding earlier arrangements under which Israel retained jurisdiction.
3. Competing jurisdictions and welfare. The court regarded the conflict between the English and Israeli proceedings as exceptionally undesirable. It considered that IS’s mature and strongly held views should, so far as possible, be accommodated rather than subjected to continuing pressure. The assessment should focus not merely on why the parties behaved as they did, but on what could improve the relationship between IS and her father.
4. Disposition. The court adjourned final determination of the jurisdiction issue and sought a judicial moratorium to permit a family assessment by a child and adolescent psychiatrist. It retained jurisdiction, provisionally considered that it could exercise constructive control over parental responsibility and contact, and directed that the judgment and relevant documents be translated and sent to the Israeli court.

The judgment records that the London Court of Appeal dismissed the mother’s appeal in July 2002 against an order for the child’s return under the 1980 Hague Child Abduction Convention. The present judgment was a first-instance decision of the High Court (Family Division); the jurisdiction issue was adjourned rather than finally determined.