JKL (Children : Transnational Abandonment : Interim Order)

Where a child is taken to a non-Brussels IIa state with consent obtained by serious deception, the consent may be invalid and the removal wrongful for the purposes of Article 10 of Brussels IIa. A subsequent failure to return the child after an agreed short visit may independently constitute wrongful retention.

At an interim stage, the court may determine jurisdiction provisionally from written evidence where urgency requires immediate protection, provided the procedure remains fair and proportionate. In deciding whether to order return under the inherent jurisdiction, the children’s welfare is paramount. The court may use the welfare checklist as guidance and may order return where reunion with the parents is necessary to prevent continuing emotional harm.

These wardship proceedings concerned three children who had been living in Pakistan for more than a year. The mother alleged that the father had deceived her into travelling there for a short visit and had then left her and the children unable to return. The father maintained that the family had consensually relocated to Pakistan and challenged both jurisdiction and the appropriateness of proceedings in England and Wales.

The final hearing was adjourned because the father could not continue to participate effectively after the withdrawal of his counsel and a family bereavement. The court therefore had to decide, on an interim basis, whether it had jurisdiction and whether the children should immediately return to England.

1. Adjournment and interim procedure. The final determination was adjourned because it would have been unfair to proceed when the father, through no fault of his own, was unrepresented and unable to participate effectively. The court nevertheless had to address the urgent interim position. It could determine jurisdiction provisionally on the written material. The procedure was compatible with the overriding objective because it was expeditious, proportionate and fair, and the parties were given a proper opportunity to make written submissions.
2. Article 10 jurisdiction. The children had been habitually resident in England and Wales before their departure. The mother’s consent to the trip was procured by serious deception and was therefore invalid. The removal was consequently in breach of her rights of custody and wrongful for Article 10 purposes. Alternatively, the father’s prevention of the children’s return after the agreed visit of about a month was a wrongful retention. The children had not acquired habitual residence in Pakistan during that period: their home and school remained in England, the intended stay was temporary, and there was no requisite stability or integration.
3. Other jurisdictional bases. It was unnecessary to decide Article 8 jurisdiction at the interim stage. Habitual residence remained a difficult factual question requiring oral evidence and further argument. The court also considered that, had Article 10 not applied, the exceptional facts would have justified exercising the limited protective parens patriae jurisdiction recognised under the Family Law Act 1986.
4. Return order. Welfare was the paramount consideration in determining whether to order return under the inherent jurisdiction. The court had regard to the welfare checklist in the