E and F (Stranding), Re

Children wrongfully retained abroad may remain habitually resident in England where their removal or retention has placed them in a state of limbo pending litigation. Habitual residence is a question of fact assessed in the round. The court retains jurisdiction under section 2(1)(a) of the Family Law Act 1986 where the children remain habitually resident in England, and under section 2(1)(b) where they were habitually resident here when the application was made. In accordance with the UK-Pakistan Protocol and the principles of the 1980 Hague Convention, the court of habitual residence will normally determine welfare. The children’s best interests may require their return with their primary carer.

The mother and father, both Pakistani nationals, married in Pakistan and lived with their two young children in England. The family travelled to Pakistan in May 2024. The mother alleged, and the court found, that the father had subjected her to domestic abuse, induced the journey by deception, retained the family’s travel documents and prevented their return.

The mother applied for wardship and return orders in England. The father did not participate, although he had notice of the proceedings. Proceedings had also taken place in Pakistan. The issues were whether the children were habitually resident in England, whether the court had jurisdiction, and whether return orders were in their best interests.

1. Habitual residence. The children were habitually resident in England when they left and when the application was made. Their nurseries, proposed schooling, medical arrangements, immigration status and family life all demonstrated integration in England. The temporary visits to Pakistan did not alter that conclusion.
2. The children remained habitually resident in England at the hearing. Habitual residence was a question of fact. Their continued presence in Pakistan resulted from the father’s conduct and ongoing litigation. They were being held in a state of limbo, which was neither habitual nor ordinary life.
3. Jurisdiction. The court therefore had jurisdiction under section 2(1)(a) of the Family Law Act 1986. Alternatively, if the children were no longer habitually resident in England, jurisdiction arose under section 2(1)(b) because they had been habitually resident here when the application was made.
4. Protocol and welfare. The UK-Pakistan Protocol indicated that welfare would normally be determined by the courts of the child’s habitual or ordinary residence. Where a child had been moved without the consent of a parent exercising rights of custody, the court of retention should not normally exercise jurisdiction except to order return. The mother was exercising rights of custody as the children’s primary carer.
5. Return orders. The children’s best interests required them to remain with their mother, who wished to return to England. The court ordered the father to return the mother’s and children’s passports and identity documents and to facilitate applications and other steps necessary for their return. It did not purport to direct the Pakistani courts as to how they should proceed.

First-instance decision. No prior appellate decision was stated in the judgment.