A, B, C and F (Children)

Where children habitually resident in an EU Member State are wrongfully retained in a non-EU state, Council Regulation (EC) No 2201/2003 may preserve the jurisdiction of the courts of the Member State of their former habitual residence. A later change in habitual residence does not itself defeat that retained jurisdiction.

Jurisdiction and its exercise are separate questions. The court must consider the children’s welfare, the practical advantages and risks of returning them, the length and circumstances of their stay abroad, and whether declining jurisdiction would abdicate responsibility for children within the court’s protective jurisdiction. Strongly expressed wishes and feelings, particularly those of a young child, do not require the court to surrender its welfare judgment.

The mother applied in wardship proceedings concerning four children. Three children had remained in Somalia since the family travelled there from England in 2011; the fourth had returned to England in 2012. The court found that the father had wrongfully retained the three children in Somalia without the mother’s agreement and had obstructed their return.

The central issues were whether the English court retained jurisdiction despite the children’s integration in Somalia and, if so, whether it should exercise that jurisdiction and order their return. The court also considered how the return should be secured.

The court determined that it had jurisdiction in relation to all four children and would exercise it.

1. Jurisdiction. The fourth child had become habitually resident in England by the commencement of proceedings. The other three had left England, their former habitual-residence state, in August 2011 and were no longer habitually resident there in fact. Their continued presence in Somalia nevertheless resulted from the father’s deliberate, unilateral and wrongful retention of them against the mother’s wishes.
2. Applying the reasoning of Re H (abduction: jurisdiction), including the Court of Appeal’s explanation in [2014] EWCA Civ 1101, the court held that jurisdiction was retained under Art 10 of Council Regulation (EC) No 2201/2003. The children had not acquired habitual residence in another Member State. The court left open whether acquiescence under Art 10(a) could independently end retained jurisdiction.
3. Exercise of jurisdiction. The prolonged stay in Somalia weighed against intervention. It was outweighed by the children’s unstable care arrangements, concerns about their health, education, safety and emotional welfare, the father’s conduct in undermining their relationship with the mother, and the absence of any effective alternative protection. The court held that the potential benefits of return substantially outweighed the risks.
4. The children’s wishes and feelings required careful evaluation and did not bind the court. The court rejected the proposition that its welfare judgment had to be surrendered to the stated preferences of the children, particularly the seven-year-old child.
5. The father was to take steps facilitating transfer of the three children to identified maternal relatives and their journey to England, and was restrained from hindering or delaying the process. On return, the children were to remain in the mother’s care pending further directions. The question of costs and possible contempt proceedings was left for later determination.

First-instance wardship proceedings in the High Court Family Division. The judgment records earlier orders made by Newton J and proceedings before other judges, but no appeal from an earlier decision is identified.