WB v VM

Where a child is removed from England and Wales to a non-Contracting State, jurisdiction under the 1996 Hague Convention depends on the child’s habitual residence at the relevant stage. If habitual residence later moves to the non-Contracting State, the Convention ceases to apply and domestic law determines jurisdiction.

Habitual residence requires a global, child-focused evaluation of the child’s integration into a social and family environment. There is no fixed minimum period. A return application may fall within Family Law Act 1986, s 1(1)(d), where the proceedings encompass substantive arrangements for care or contact, rather than merely an inward return order.

The mother sought the return of her two-year-old daughter, R, who had been taken by the father from England to Jordan without her knowledge or consent. Jordan was not a party to the 1980 or 1996 Hague Convention. The mother’s application was dated 18 October 2023 and issued on 30 October 2023.

The court had to determine whether R remained habitually resident in England and Wales when the application was made, whether jurisdiction continued after her habitual residence moved to Jordan, whether the proceedings fell within s 1(1)(d) of the Family Law Act 1986, whether a stay was available, and whether an immediate return order was presently justified.

1. Jurisdiction. Following H v R and the Embassy of the State of Libya, as approved in Re London Borough of Hackney v P and Others, the court first considered R’s habitual residence when the application was made and then her position at the hearing. R remained habitually resident in England and Wales in October 2023. Her short previous holiday in Jordan gave her no substantial prior integration there. Her age, the abrupt removal, the loss of her primary-carer mother and the absence of compelling evidence of early integration were decisive.

2. After a further three months, R had become more significantly integrated into life in Jordan with her father and paternal family. Her habitual residence had therefore moved to Jordan by the hearing. Under the approach in H v R, Article 5 of the 1996 Hague Convention no longer governed, but domestic law applied. The court agreed that Family Law Act 1986, ss 1, 2, 3 and 7 cumulatively conferred jurisdiction where the child had been habitually resident in England and Wales on the application date.

3. The application fell within s 1(1)(d). Although expressed as seeking the child’s return, the proceedings also encompassed care and contact arrangements. The mother’s stated intention to seek a prompt hearing concerning co-parenting and the interim orders addressing information and contact demonstrated that the application was not merely a bare inward return order. The lacuna identified in A v A and Another was therefore avoided.

4. The father’s stay application failed. Under s 5(2)(a), a stay required continuing proceedings outside England and Wales concerning the relevant matters. The Jordanian order preventing removal was not continuing welfare litigation, and no such proceedings were ongoing.

5. The court did not make an immediate return order. Welfare, rather than enforceability, remained the first consideration, although enforceability was materially relevant afterwards. The evidence was insufficient to determine that return was presently the best means of securing R’s welfare. The final decision was adjourned for less than 21 days to permit further mediation and exploration of regular direct contact, with relisting in the week commencing 19 February 2024.

First-instance judgment. The judgment records no appeal or earlier substantive determination affecting the present decision.