Ford v Halil

Where children have lived continuously in another country for a substantial period and have become habitually resident there, the court may bring English proceedings to an end without determining disputed facts or the underlying welfare merits. The welfare jurisdiction should be exercised in the place where reliable welfare decisions can properly be made, having regard to the children’s actual circumstances and the availability of appropriate enquiry. The children’s welfare remains paramount, but that principle does not require an English court to continue deciding matters when the children are habitually resident abroad and settled there. The dismissal does not prevent either parent or another appropriate person from applying to the courts of the country of habitual residence.

The proceedings concerned two children who had been living in Alaska with the mother’s husband since their removal from England in October 2015. The mother was in custody in England facing criminal charges. The father sought the continuation of proceedings concerning the children and their return to England. Evidence addressed the children’s settlement and welfare in Alaska, as well as allegations of domestic violence and the elder child’s reported fears.

The court had previously considered the matter in a judgment dated 9 May 2018, reported at [2018] EWHC 1213 (Fam). The central issues were whether the children had become habitually resident in Alaska and whether this court should continue to determine welfare questions without making findings on the disputed allegations.

1. The proceedings were dismissed and continuing orders were discharged. The court made no findings about the alleged violence, the children’s reported statements, or the underlying merits. The order brought the English proceedings to a complete end.
2. The children had lived continuously in Alaska for almost three years and appeared, on the evidence, to be settled there. The court considered it plain that they were habitually resident in Alaska and had been so resident for an appreciable period.
3. Although the children’s welfare was the paramount consideration, this court was many thousands of miles away and lacked suitable means of enquiry, including the forms of investigation available through Cafcass. It was therefore impossible for the court reliably to embark on welfare decision-making in England.
4. The essence of the decision was that welfare decisions should properly and reliably be made in Alaska, where the children were habitually resident and living. Either parent, or another appropriate person including Mr Ford, remained free to apply to the Alaskan courts. Nothing in the judgment or order was intended to influence those courts.
5. The court declined to inspect the Child Abduction Unit’s file. Communications between a person seeking assistance and the Unit, located within the Office of the Official Solicitor, were treated as protected by legal professional privilege. The father had not waived that privilege. The file was therefore returned unread.

This was a first-instance continuation of proceedings previously considered by the same court in the judgment reported at [2018] EWHC 1213 (Fam). No appeal or lower-court decision is stated in the judgment.