A (Children Retained in Iraq), Re

In proceedings concerning children retained abroad, the court must make reasonable efforts to obtain an objective account of their wishes and feelings. Those wishes and feelings may inform welfare decisions and may assist in determining habitual residence, but they are not decisive of habitual residence. Where habitual residence is in issue, the relevant question concerns the children’s state at the date when proceedings were commenced. The court may direct confidential electronic interviews with children abroad and require a parent to facilitate them. A parent may also be ordered to attend a further hearing where personal participation is essential to a just resolution.

Two British children, aged 14 and nearly 12, had lived in England until travelling to Iraq with both parents in July 2016. The mother returned to England, but the children remained in Iraq with the father. Earlier proceedings and orders requiring the children’s return had been discharged after neither the father nor the children attended a September 2016 hearing.

The mother commenced fresh proceedings in November 2016. She relied on alleged duress, continuing habitual residence in England and Wales, and the children’s British citizenship as possible bases for jurisdiction. The hearing concerned directions, including how best to establish the children’s wishes and feelings and progress the jurisdictional issues.

1. Directions and adjournment. The matter was adjourned and reserved to the judge. Further evidence and statements were to be prepared. The father was ordered to attend the next hearing personally.
2. Children’s wishes and feelings. The court considered it essential to obtain, so far as reasonably possible, an objective account of each child’s wishes and feelings. Their views were plainly relevant to welfare and outcome decisions.
3. Habitual residence. The children’s objectively reliable views might assist the court in deciding whether they were settled and integrated in Iraq or remained connected with England. Those views were relevant but not decisive. The technically material date was the commencement of the proceedings in late November 2016, so far as the children’s state of mind at that time could be ascertained.
4. Means of obtaining evidence. Although a temporary return to England for confidential meetings with CAFCASS, and possibly a judge, might have been preferable, the evidence and hearing were insufficient to justify ordering the children’s return at that stage. CAFCASS was instead directed to endeavour to interview the children in Iraq by Skype or similar means. The father was required to cause, permit and facilitate confidential communication.
5. Attendance and liberty to leave. Under rule 27.3 of the Family Procedure Rules, the father was obliged to attend unless excused. The court made clear that, provided he complied with the new order and committed no later contempt, he would be free to leave England after the next hearing.