H v R & Anor.

A return application for children taken to a non-contracting state may proceed under the inherent jurisdiction where it seeks substantive care, bringing it within section 1(1)(d) of the Family Law Act 1986. If the 1996 Hague Convention no longer supplies jurisdiction because habitual residence has shifted to a non-contracting state, domestic law applies and the relevant date is the date of application. Habitual residence remains a child-focused factual inquiry into integration, proximity, stability, family connections, parental intention and, where relevant, the child’s state of mind. The court declined a stay in favour of Libya but deferred enforcement of the return order pending a fuller welfare investigation.

The mother applied for the return of two children who had lived in England until their father took them to Libya in August 2020. They remained there with paternal relatives, and a Libyan guardianship order and travel ban followed. The mother’s application sought substantive care and return orders under the High Court’s inherent jurisdiction. The court first determined whether it had jurisdiction, whether the English proceedings should be stayed in favour of Libya, and whether the return order should be enforced. The welfare issue was adjourned for further evidence.

Jurisdiction. The court held that the application sought substantive care of the children, not merely a bare inward return order. It therefore fell within section 1(1)(d) of the Family Law Act 1986. A bare return order without care or contact provisions would not have done so, consistently with A v A and another (Children: Habitual Residence) [2013] UKSC 60. The court also accepted that the parens patriae jurisdiction was unavailable because the children were neither British nationals nor travelling on British passports, applying Re B [2015] EWCA Civ 886.

1. Under the Act’s jurisdictional scheme, where the 1996 Hague Convention does not provide a continuing jurisdiction because habitual residence has shifted to a non-contracting state, domestic law applies. The relevant date under sections 3 and 7(c) is the date of the application.
2. The children remained habitually resident in England on 2 June 2021 and, alternatively, at the hearing. Habitual residence was a factual, child-focused inquiry into integration in a social and family environment, proximity, qualitative stability, parental intention and the state of mind of an older child. The court placed particular weight on the children’s continuing parental integration, their parents’ intention that they return, their emotional limbo, and the coercive circumstances preventing return. The approach in Re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 922 was applied.
3. The Article 7 argument was dealt with for completeness after being abandoned. The court considered that the reasoning in SS v MCP [2021] 2 FLR 297, concerning Article 10 of Brussels IIa, applied equally to Article 7 of the 1996 Convention. Article 7 did not assist where removal was to a non-contracting state.
4. Applying the forum conveniens principles in Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460, together with the child-best-interests and comity considerations identified in Re K (A Child) (Stranding: Forum Conveniens: Anti-Suit Injunction) [2019] 4 WLR 38 and Al Habtoor v Fotheringham [2001] 1 FLR 951, England and Wales was the appropriate forum. The proceedings were not stayed.
5. The court declined to make or enforce the return order at that stage. A fuller welfare inquiry was required, including oral evidence, an updated welfare report and consideration of the allegations made by the children. The hearing was adjourned part heard, with directions for a final hearing.

not stated in the judgment.