AB v AB (Child : Enforcement of Foreign Order : Algeria)

A foreign child-welfare order is a relevant factor, but it does not determine the outcome automatically. The English court must make an independent welfare judgment and give the foreign order such weight as the circumstances require. A summary relocation order should be made only where the court can decide on the available material that relocation is in the child’s best interests. This is particularly important where the child has always lived in England, is settled there, and the foreign court did not consider relocation. A child’s habitual residence has a strong, though not conclusive, claim to be the appropriate forum. Where enforcement and a stay stand or fall together, refusal to enforce the foreign order ordinarily requires the English proceedings to remain available for welfare decisions.

The father sought an order under the inherent jurisdiction requiring the parties’ young child, who had always lived in England, to move to Algeria. He also sought a stay of the mother’s English proceedings. He relied on Algerian divorce and custody orders, which awarded custody and guardianship to the mother but were treated in practice as requiring custody to be exercised in Algeria.

The mother opposed any summary relocation. She sought to remain in England and relied on the child’s settled life there, the practical difficulty of obtaining permission to exercise custody outside Algeria, and the risk of imprisonment. The central questions were whether the Algerian orders should be enforced summarily and whether the English proceedings should be stayed.

1. Summary relocation and welfare. The father’s application was dismissed. The proposed order was not a return order, because the child had never lived in Algeria. It was a robust summary order requiring the mother to relocate with the child to a country in which the child had never lived. The court had to decide whether it could determine, without a full welfare investigation, that relocation was in the child’s best interests.
2. Foreign order. The Algerian order was only one factor. The court had to form an independent judgment, while giving the foreign judgment proper weight according to the circumstances. Its weight was significantly reduced because the Algerian court had not considered whether the child should continue living in England or move to Algeria. The practical effect of the order resulted from the place in which it was made and from a misunderstanding by the parties’ lawyers, rather than from a determination of relocation.
3. Application of the welfare principle. The child had been habitually resident in England throughout her life and was settled there with a mother who wished to remain. The evidence showed a substantial risk that relocation would prevent their return to England and might expose the mother to imprisonment. The child’s Algerian nationality and wider family connections did not outweigh her close connections with England. The court was clearly not in a position to make the proposed summary welfare determination, and making it would be contrary to the child’s best interests.
4. Forum and stay. The court assumed, without deciding, that it had jurisdiction to stay under Family Law Act 1986, section 5(2), while noting that it was debatable whether proceedings were still continuing in Algeria. The enforcement application and stay application stood or fell together. Since enforcement was refused, it would be illogical to stay the English proceedings. England was clearly the forum with the more real and substantial connection.