R v G

A child’s habitual residence is determined by a fact-sensitive assessment centred on the child’s integration in the social and family environment, parental intention and the stability of residence. A short, unsettled stay abroad will not ordinarily displace an established habitual residence.

For a stay under Family Law Act 1986, the applicant must show that England is not the natural or appropriate forum and that the alternative forum is clearly more appropriate. The court weighs the real and substantial connection, available evidence and witnesses, legal representation, procedural progress, applicable legal framework and the practical availability of the relief sought. Welfare is important, but not paramount.

The father applied under the inherent jurisdiction for the summary return of two children from Jordan. The children had lived in England for several years, where one was born and the other attended school. The mother took them to Jordan following a parental disagreement and opposed the application, contending that their habitual residence had changed.

Alternatively, she sought a stay of the English proceedings on the basis that Jordan was the more convenient forum for determining welfare issues. The court therefore had to decide the children’s habitual residence at the relevant date and, if England retained jurisdiction, whether Jordan was clearly the more appropriate forum.

1. Habitual residence. The children remained habitually resident in England when the father issued proceedings. They had lived in England for several years, were integrated into family and social life here, and one attended school here. The period in Jordan between 22 May and 9 June 2021 was relatively short and there was limited evidence of integration there. The mother’s unsettled position and stated intention were insufficient to displace the established habitual residence, particularly in light of the return tickets, continued remote schooling and evidence of an intended return.
2. Stay and forum conveniens. Applying the principles summarised in Re K (A Child: Stranding: Forum Conveniens: Anti-Suit Injunction) [2019] EWHC 466, the mother bore the burden of showing both that England was not the natural or appropriate forum and that Jordan was clearly more appropriate. That assessment required consideration of the competing jurisdictions’ real and substantial connections, the availability of evidence and witnesses, representation, procedural progress, international comity and the ability of each court to determine the issues.
3. The father’s application for the children to live with him was likely to be functionally unavailable, or substantially less available, in Jordan under the legal framework described by the expert. Any welfare analysis there would also be curtailed. By contrast, the English court could determine the welfare issues under a wider welfare analysis, with relevant evidence more readily available and no significant delay identified.
4. Although the children had been in Jordan for several months, that factor did not outweigh their long-standing connection with England, the circumstances of their removal without the father’s apparent consent or knowledge, and the importance of considering their continuing relationship with him. Welfare was an important, but not paramount, consideration in the forum exercise. The application for a stay was refused. Further submissions were invited on consequential orders.