R v R

A court should not repeat an earlier order for the return of children where subsequent events make the asserted jurisdiction uncertain and the court lacks current information about the children’s welfare. Habitual residence may become difficult to establish after a prolonged period abroad. Jurisdiction described as exclusive under an EU instrument may not be exclusive as against a non-member state. An order for immediate return should not be made where the court cannot assess whether return is in the children’s best interests.

The father sought to regularise an earlier without-notice order made by Keehan J. That order had declared the children wards of court and directed their return to England and Wales, on the provisional basis that they remained habitually resident here and that the English court had exclusive jurisdiction.

The children had lived in India with their mother for approximately nine months. An Indian court had concluded that the father had failed to disclose earlier Indian proceedings and that the Indian courts had jurisdiction. The father asked the court either to set aside the earlier order and replace it with a similar order, or otherwise to leave it in place.

1. No replacement order. The application was treated as a non-event and no order was made. The earlier order remained in force because the father chose not to seek its formal discharge.
2. Habitual residence. Although the earlier order had provisionally stated that the children remained habitually resident in England and Wales, the court could not repeat that conclusion after the children had lived in India for nine months. The passage of time made the asserted habitual residence increasingly doubtful.
3. Jurisdiction. The earlier statement that the English court had exclusive jurisdiction was almost certainly inaccurate. The EU Regulation governed jurisdiction between EU member states. It did not necessarily exclude jurisdiction in India. On the material before the court, jurisdiction was at most shared between the English and Indian courts.
4. Welfare and return. The court had no information about the children’s present living circumstances, welfare or wellbeing. It was therefore far from self-evident that immediate return to England and Wales was in their best interests, and the court could not make an order along the lines of the earlier return order.

First-instance decision. The judgment records that the earlier order of Keehan J had not been appealed and had not been challenged by the mother.