AB v EM (Jurisdiction Foreign Custody Order), Re

In a non-Convention child-abduction case, the court must determine jurisdiction, forum and welfare as separate questions. Habitual residence is a child-focused factual inquiry based on integration in a social and family environment. It is not determined by arithmetic calculations of time spent in different countries, and parental intention is relevant but not decisive.

Where England and Wales has jurisdiction, a stay requires the alternative forum to be clearly and distinctly more appropriate. In an application for summary return, the child’s welfare is paramount. A foreign custody order is entitled to respect and careful consideration, but it neither ousts jurisdiction nor displaces an independent welfare assessment.

The mother sought orders under the inherent jurisdiction concerning her four-year-old daughter, who had been taken from England to Egypt by the father. The parties had Lebanese nationality, and a Lebanese court order had approved an agreement giving the father custody and permitting residence in the United Kingdom, Egypt or elsewhere.

The issues included the child’s habitual residence at the time of removal and when proceedings were issued, the appropriate forum, the effect of the Lebanese order, and whether summary return to England and Wales was in the child’s best interests. The father sought a stay in favour of Lebanon.

1. Disposition. The court held that the child remained habitually resident in England and Wales both when she was taken to Egypt and when the proceedings were issued. It therefore had jurisdiction under the inherent jurisdiction, without needing to determine wrongful removal under Art 10 of Council Regulation (EC) 2201/2003 or the alternative parens patriae jurisdiction.
2. Habitual residence. The inquiry was child-focused and concerned integration in a social and family environment. The relevant factors included the family home, education, nationality, language, durable ties and the circumstances of the absences from England. Time spent outside the jurisdiction was not determinative. The child’s centre of gravity remained in England, and the evidence did not establish sufficient integration in Egypt to displace that habitual residence.
3. Forum. Applying Spiliada Maritime Corporation v Consulex [1997] AC 460, the father had to show that Lebanon was clearly and distinctly the more appropriate forum. The parties and child’s closest connections were with England and Wales, the proceedings were already issued there, and the principal welfare evidence concerned that jurisdiction. A stay was refused.
4. Welfare and foreign order. The child’s welfare was paramount. The Lebanese order was relevant and deserved respect, but it did not prevent an independent welfare determination. The absence of effective contact with the mother, the need to resolve the welfare dispute judicially, and the fact that no person with parental responsibility was in Egypt made return to England and Wales in the child’s best interests.
5. The child’s summary return from Egypt to England and Wales was ordered. Counsel were directed to submit a draft order.