NG v GA

Where a child habitually resident in England and Wales is wrongfully retained in a non-member State, the court may retain jurisdiction under Article 10 of BIIa even if the child has subsequently acquired habitual residence there. The retained jurisdiction permits substantive orders, including an order for return.

The child’s welfare is the paramount consideration. A summary return is not automatic, but the court may make a swift assessment without a full welfare investigation. Relevant considerations include the child’s connections with each country, the duration of residence, the effect on relationships with both parents, differences between legal systems, and the adequacy of educational and medical provision.

MA, a British citizen with Cornelia de Lange Syndrome and associated learning difficulties, was taken by his father from England and Wales to Ghana in July 2018. The mother agreed to a summer holiday but did not agree to MA remaining abroad for an extended period or attending school there.

MA remained in Ghana after the expected return date. The mother applied under the inherent jurisdiction for his return and for him to be made a ward of court. The issues were whether MA had been wrongfully retained, whether the court retained jurisdiction under Article 10 of BIIa, and whether return was in MA’s best interests.

1. Wrongful retention. The mother retained parental responsibility and had not agreed to MA remaining in Ghana beyond the 2018 summer holiday. The father’s unilateral decision to keep MA there therefore amounted to wrongful retention.
2. Jurisdiction. The court retained jurisdiction under Article 10 of BIIa. Applying Re H (Jurisdiction) [2015] 1 FLR 1132, the loss-of-jurisdiction provisions in Article 10 concerned a new habitual residence in another EU Member State. A new habitual residence in Ghana, a non-member State, did not terminate the retained jurisdiction. The Article 10 qualifications were not satisfied.
3. Welfare assessment. The child’s welfare was paramount. The court could make a swift and unsentimental decision without a full investigation of the merits, having regard to the principles identified in Re J (A Child)(Custody Rights: Jurisdiction). Summary return was not automatic and the assessment had to focus on MA’s individual circumstances.
4. Return was in MA’s best interests. His specific medical and educational needs had been assessed and supported in England and Wales, whereas there was no evidence that the Ghanaian school understood or addressed those needs. MA had stronger connections with England and Wales, both parents lived there, and his continued retention was seriously undermining his relationship with his mother. The difficulties with indirect contact, the absence of anyone with parental responsibility in Ghana, and the father’s inappropriate discussion of the proceedings with MA further supported return.
5. The educational advantages asserted by the father did not outweigh the welfare benefits of return. The court therefore ordered the father to return MA to England and Wales and made MA a ward of court.

Not an appeal. The judgment records earlier applications and directions in the High Court, including the order of HHJ Richards on 11 January 2019 making MA a ward of court and ordering his return.