Ford v Halil & Anor

Where children have lived openly and for a substantial period in another country, the court may discharge earlier return and wardship orders when those orders have been overtaken by events and the court can no longer exercise effective jurisdiction. The practical centre of future welfare litigation will ordinarily be the children’s current place of habitual residence, particularly where they are settled there. The court may nevertheless retain proceedings temporarily where a parent’s enforced presence in England creates an immediate welfare or procedural difficulty. Interim orders should regularise the children’s care and residence while directions are given for evidence and contact.

The proceedings concerned two children who had been removed from England to Alaska by their mother after an English relocation application had been refused. Earlier High Court orders made the children wards of court and directed their return to England and Wales. The mother was later extradited to England and detained pending criminal proceedings, while the children remained settled in Alaska with their stepfather and half-brother.

The court considered whether the earlier orders should continue, where future family proceedings should take place, and what interim arrangements were required for the children, including possible indirect contact with their father.

1. Earlier orders discharged. The children had lived openly in Alaska for more than two and a half years. The court had no effective means of exercising wardship jurisdiction over them. The wardship order, the immediate-return orders and other continuing orders were therefore discharged or set aside as having been overtaken by events and the lapse of time.
2. Future forum. The children were apparently settled in Alaska and were very likely habitually resident there. It was difficult to conceive of effective long-distance welfare litigation in London, including effective investigation by Cafcass. Alaska was therefore the obvious forum for future applications concerning the children.
3. Hague Convention. The father’s failure to pursue a return application after the alleged wrongful removal was significant. A late application under Article 12 of the Hague Convention on the civil aspects of international child abduction was anticipated to be very unlikely to succeed because the children had become settled in Alaska.
4. Temporary retention of proceedings. The court would have dismissed the English proceedings if the mother had been free to return to Alaska. Because she was compulsorily detained in England, the proceedings were retained temporarily to address the immediate practical position and obtain evidence.
5. Interim directions. The parents were directed to file sequential narrative statements, subject to the mother’s privilege against self-incrimination. The stepfather was directed to address telephone or Skype contact between the father and the children. Pending further order, the children were to remain in the stepfather’s care at the specified Alaska address and were not to leave the United States.

The judgment describes earlier orders made by High Court judges in October 2015 and September 2016, and a later order suspending the September 2016 order. No appellate decision is stated.