K (A Child) (Retention in non-Hague Convention State), Re

Jurisdiction under the 1996 Hague Convention and the Family Law Act 1986 depends principally on the child’s habitual residence at the relevant date. Habitual residence is a fact-sensitive, child-focused question requiring a global and comparative assessment of all relevant connections with the jurisdictions concerned. Parental intention and consent are relevant but not determinative. A parent may unilaterally change a child’s habitual residence, but the court must focus on the child’s current situation and the quality and stability of the residence.

Where habitual residence remains in England and Wales, the court may make welfare orders notwithstanding proceedings in a non-Hague Convention state. A return order may be made where the advantages to the child, including preserving meaningful relationships and assisting the welfare investigation, outweigh the disruption caused by return, provided adequate protection is secured.

The father applied for the summary return of his very young child, K, from Dubai to England and Wales. The mother contended that the parties had agreed to relocate to Dubai and that K had become habitually resident there. She also relied on the proceedings and interim orders obtained in Dubai.

The court had to determine whether it had jurisdiction and, if so, whether K’s welfare required an interim return while a fuller welfare investigation was undertaken. The central issues were whether K’s habitual residence had transferred to Dubai and whether a return order could safely and proportionately be made.

1. Jurisdiction. The court had jurisdiction under Article 5 of the 1996 Hague Convention and section 2(1)(b)(ii) of the Family Law Act 1986. Habitual residence was assessed at the date of issue, with the possibility that jurisdiction could be lost if habitual residence transferred before the hearing. Sections 3 and 7 preserved a residual jurisdiction based on habitual residence at the application date.
2. The test was a factual and child-focused global analysis. The relevant question was where K had achieved the requisite degree of integration in a social and family environment. The court had to compare the practical connections with England and Wales and Dubai. The see-saw analogy concerning the loss and acquisition of habitual residence was useful only with caution and did not replace the core inquiry.
3. Although the mother had been K’s primary carer, had family support in Dubai, and had obtained residence and custody orders there, K’s stay lacked sufficient stability. His father remained a central figure in his life, his paternal family remained in England, he had lived only in England before the move, and the mother had acted unilaterally and secretly. K’s habitual residence had therefore not transferred to Dubai.
4. The court declined to strike out or stay the proceedings. England and Wales was better placed to undertake a holistic welfare evaluation. The first issue in the Dubai proceedings did not justify giving them priority.
5. Return order. K’s welfare was paramount. The court gave particular weight to his young age, emotional needs, the likely effect of changed circumstances, risks of harm, and each parent’s capacity to meet his needs. Remaining in Dubai created a substantial risk that the father would be marginalised and that K would lose the opportunity to develop a meaningful relationship with him. It would also hinder the forensic welfare assessment.
6. The disadvantages of return were outweighed by its advantages, subject to adequate protection for the mother and K. Financial arrangements and safeguards were to be addressed through appropriate orders under the Children Act 1989 and the Family Law Act 1986. The judgment encouraged the mother to return and participate fully in the proceedings.