SA v AA

Where children are wrongfully retained in a non-contracting state, the 1996 Hague Convention may require the courts of the contracting state of their former habitual residence to retain jurisdiction under article 7. The reference to a child being retained in “another State” is not limited to another contracting state.

Consent obtained by deception does not amount to acquiescence in permanent removal or retention. Alternatively, habitual residence remains in England and Wales where the children’s social and family integration, education, language and emotional ties remain centred there. The court’s welfare jurisdiction may then justify immediate return orders, including protective orders where there are credible risks of FGM or forced marriage.

The Mother sought the return of three British children from Somaliland, together with protective orders for a daughter at risk of female genital mutilation and forced marriage. The Father had taken the children to Somaliland after obtaining the Mother’s signature on a relocation consent form which she said she believed was a passport consent form.

The court found that the children had been tricked into travelling for what they understood to be an extended holiday, that the Mother had not consented to permanent relocation, and that the children remained unhappy and insufficiently integrated in Somaliland. The central issues were the court’s jurisdiction under the 1996 Hague Convention and the Family Law Act 1986, the children’s habitual residence, and whether return orders should be made.

1. Jurisdiction. The applications could properly be treated as applications for specific issue orders under section 8 of the Children Act 1989. Under section 2(1)(a) of the Family Law Act 1986, the court had jurisdiction if the 1996 Hague Convention applied.
2. Article 7 of the Convention. The children had been habitually resident in the UK immediately before removal and were wrongfully retained in Somaliland after the agreed three-month visit. The Mother had been deceived into signing the relocation form and therefore had not acquiesced in permanent removal. Article 7 applied even though Somaliland was not a contracting state. The word “State” in article 7 was not limited to “Contracting State”. The Convention required the High Court to retain jurisdiction during the relevant period, so the return application was within jurisdiction.
3. The court distinguished the reasoning in Case C-603/20 PPU SS v MCP, which concerned article 10 of Brussels 2 and did not decide the meaning of article 7 of the 1996 Hague Convention. The Convention’s wording, structure and the Lagarde Report supported applying article 7 to removal or retention in any state.
4. Alternative jurisdiction. Even if article 7 did not apply, the children remained habitually resident in England and Wales on the application date. The relevant inquiry was factual and child-focused. Their schooling, language, friendships, emotional ties and sense of home remained centred in London. The Father had not established the necessary degree of integration in Somaliland. Section 3 of the Family Law Act 1986 was therefore satisfied.
5. Welfare and orders. Return was in the children’s best interests under section 1 of the Children Act 1989. They wished to return, their educational needs were more likely to be met in London, and CA faced a significant risk of FGM and early arranged marriage in Somaliland. Immediate return orders, an FGM order and a forced marriage protection order were made. Consequential arrangements were adjourned.