HF, KF and LF (Children) (Habitual Residence), Re

For jurisdiction under the Family Law Act 1986 and the 1996 Hague Convention, habitual residence is determined by a broad, child-focused and comparative assessment of all relevant circumstances. Relevant factors include the child’s integration, the duration and conditions of residence, schooling, family and social relationships, parental intentions and the child’s age. No fixed period of residence or full integration is required.

Article 7 applies where a child is wrongfully removed or retained in a non-contracting state. The original state retains jurisdiction if the child was habitually resident there immediately before the removal or retention, there was no acquiescence, and proceedings were brought within the prescribed period before a new habitual residence was acquired.

The mother sought orders under the inherent jurisdiction for the summary return of three children who were living with their father in Dubai. The children had been born and raised in England and Wales. They travelled first to Dubai and then to Pakistan, before being taken by the father to Dubai and later returned to Pakistan. They eventually moved again to Dubai.

The preliminary issues were whether the children remained habitually resident in England and Wales when the proceedings were issued or when the return application was made, whether Article 7 of the 1996 Hague Convention preserved jurisdiction following wrongful retention, and whether England and Wales was the appropriate forum.

1. Jurisdiction under Article 5. Section 2 of the Family Law Act 1986 gave the High Court jurisdiction where the Convention requirements were met. For Article 5 purposes, the relevant date was the commencement of proceedings. The mother’s C66 application commenced the inherent-jurisdiction proceedings on 2 September 2024. Even if the later C2 application date of 20 February 2025 were used, the children remained habitually resident in England and Wales.
2. Article 7 and non-contracting states. The reasoning in SA v AA [2023] EWHC 2016 (Fam), including the approach adopted from SAS v AA, was compelling. Article 7 applied where children were wrongfully removed or retained in a non-contracting state. The court therefore retained jurisdiction if the children had been habitually resident in England and Wales immediately before the wrongful removal or retention, the mother had not acquiesced, and proceedings were brought within one year before a new habitual residence was acquired.
3. Habitual residence. The assessment required a global and comparative analysis focused on the children. The children’s long-standing integration in England and Wales, the temporary nature of the Dubai visits, the absence of evidence of meaningful integration in Pakistan or Dubai, the children’s disrupted living arrangements, lack of schooling and separation from their primary carer meant that the father had not established a change of habitual residence by 1 July 2024, 2 September 2024 or 20 February 2025. The burden of proving a change lay on the father.
4. The children had been wrongfully retained in Dubai no later than 1 July 2024. The mother had not acquiesced. Article 7 therefore provided an additional basis for jurisdiction.
5. Forum conveniens. England and Wales was the appropriate forum. The father had not shown that Dubai was clearly the more convenient forum. Relevant considerations included the existing English proceedings, the parties’ ability to participate and obtain representation in England, the absence of evidence concerning the Dubai legal system, and the children’s strong historic connections with England.
6. The proceedings were not stayed. The parties were invited to agree directions for determination of the mother’s substantive application.