ZZ v AA

Jurisdiction to determine protective or welfare applications concerning children is assessed by reference to habitual residence at the date of the application. Habitual residence requires a sufficient degree of integration in a social and family environment, determined through a global factual analysis. Parental intentions are relevant but not determinative.

Where a stay is sought on forum conveniens grounds, the applicant must establish that the alternative forum is clearly or distinctly more appropriate. The court must assess the real and substantial connection with each forum, including evidence, witnesses, representation, procedural progress and the children’s best interests. Best interests are important, but not paramount.

The applicant father sought orders under the inherent jurisdiction for the return of his two children from India, where they had travelled with their mother in September 2023 and remained. The father issued proceedings in England and Wales on 22 February 2024. The mother disputed jurisdiction and contended that India was the appropriate forum, but did not attend the hearing or file the directed evidence.

The court was required to determine whether the children were habitually resident in England and Wales on the application date and, if so, whether the English proceedings should nevertheless be stayed in favour of India. The court did not determine the substantive return application.

1. Jurisdiction. The court had jurisdiction under Article 5 of the 1996 Hague Child Protection Convention and the Family Law Act 1986. The relevant date for habitual residence was the date of the application, 22 February 2024.
2. Habitual residence. Applying Re A and the expectations identified in Re B, habitual residence required a global assessment of the children’s integration in their social and family environment. Relevant matters included their previous life, the reasons for the move, nationality, schooling, language and family and social relationships. Parental intentions were relevant but not determinative.
3. The children had lived all their lives in England and Wales, were British citizens, spoke English, had been integrated into their local community and had left one parent behind. Their travel to India had been presented as temporary, was not meaningfully pre-planned, and there was insufficient evidence of integration into life in India. They therefore remained habitually resident in England and Wales when the application was issued.
4. Forum conveniens. The court adopted the principles summarised in V v M. The burden was on the party seeking a stay to show both that England was not the natural or appropriate forum and that India was clearly more appropriate. The assessment included the real and substantial connection with each forum, witnesses and evidence, representation, procedural progress, international comity and the children’s best interests. The welfare of the children was important, possibly a primary consideration, but was not paramount.
5. Most relevant evidence concerned alleged events in England and Wales. The Indian proceedings had produced no substantive orders and had not addressed the legality of the children’s continued stay in India. The mother therefore failed to establish that India was the more appropriate forum. Her application for a stay was refused. The court directed disclosure and communication of the judgment to the Indian court, and listed the return application for determination.