SW v MW

Transnational marriage abandonment is a broad concept, not a formulaic term. It may arise where one spouse exploits the other’s vulnerability or immigration position to prevent return to the United Kingdom. The attempt need not succeed. Habitual residence is determined through a child-centred factual assessment of integration in the social and family environment. Parental intention is relevant but not determinative. Where a child is habitually resident abroad, the inherent protective jurisdiction based on nationality remains available where circumstances are sufficiently compelling and its exercise is necessary. The jurisdiction is residual and must be used with substantive caution.

The applicant mother sought wardship and ancillary orders concerning two children who had travelled with her from England to Pakistan in November 2019. She alleged that the respondent father had retained their passports, falsely represented that they would return, and thereafter left them stranded in Pakistan. The father maintained that the mother had travelled voluntarily and had remained there permanently.

The court determined whether the mother and children had been stranded, whether the children were habitually resident in England and Wales, whether wardship should continue, and whether orders should be made for their return. It also considered whether the protective jurisdiction could be exercised on the children’s British nationality if habitual residence was not established.

1. Abandonment. The court found that the father had retained the travel documents, falsely assured the mother that she and the children would return to England, and then returned alone. The mother and children were therefore stranded in Pakistan. The concept of abandonment or stranding under Re A [2019] EWCA Civ 74 is broad. It includes conduct placing obstacles in the way of return and may support a finding of controlling or coercive behaviour even where the attempt to strand is unsuccessful.
2. Habitual residence. Applying the child-centred factual approach summarised in In re B (A Child) (Custody Rights: Habitual Residence) [2016] EWHC 2174 (Fam), the children remained habitually resident in England and Wales. They had lived there as a family unit, were registered with doctors and health visitors, had British passports, and were intended to remain there. Their inability to return resulted from the father’s conduct and did not change their habitual residence.
3. Protective jurisdiction. If the habitual-residence conclusion were wrong, the court would nevertheless exercise the parens patriae jurisdiction. Following Re M [2020] EWCA Civ 1105, the threshold was that the circumstances had to be sufficiently compelling to require or make necessary the exercise of the protective jurisdiction. Abandonment, removal of passports, loss of autonomy and the risk of continued separation from the mother met that threshold.
4. The wardship orders were continued. The children were ordered to return to England as soon as possible after delivery of the travel documents. The father was ordered to deliver the documents within 14 days, pay the travel costs, and contribute £500 towards immigration advice. The judgment could be disclosed to the Pakistani court.