FN v AM

Where an application under the inherent jurisdiction seeks orders concerning a child’s care, contact or education, it may fall within Family Law Act 1986, s 1(1)(d), even if the initial application was framed principally as an inward return application. Jurisdiction is assessed by reference to the statutory route and the relevant date for the application. Where habitual residence was established in England and Wales when proceedings began, jurisdiction may be retained if the child later becomes habitually resident in a non-Contracting State, provided the orders sought fall within s 1(1)(d). A bare return order does not itself qualify. The court may make welfare orders and directions facilitating travel, while allowing time for parental agreement before mandatory enforcement.

The applicant mother applied under the inherent jurisdiction concerning her young son, who had been born in England while both parents lived here. Following the parents’ separation, the mother travelled with the child to country Q. A court in country Q imposed a travel ban preventing the child’s return. In an earlier judgment, the court held that the child remained habitually resident in England and Wales.

At the final hearing, the father challenged continuing jurisdiction because a further 16 months had passed. The mother sought orders concerning the child’s residence, time with each parent and the lifting of the travel ban. The central issues were whether jurisdiction had been retained and what orders were in the child’s best interests.

1. Jurisdiction. The court followed the analysis in H v R & Anor. The application was not confined to a bare inward return order. The request for such further relief as was fit and proper encompassed orders concerning KA’s care, education and arrangements for spending time with each parent. Such orders fell within s 1(1)(d) of the Family Law Act 1986.
2. Relevant date and retention of jurisdiction. Under ss 1, 2(3), 3 and 7(c) of the Act, jurisdiction for a qualifying inherent-jurisdiction order depended on the child’s habitual residence on the date of the application. The 1996 Hague Convention was the first point of reference where applicable. Country Q was not a Contracting State. If habitual residence had moved there by the final hearing, Article 5 would no longer govern, but domestic law would apply. Since habitual residence had been established in England and Wales when the application was issued, jurisdiction remained available for qualifying orders.
3. The court agreed with Peel J that the position in a non-Contracting State differed from a transfer between Contracting States. It also applied the distinction drawn in A v A and another: a simple inward return order, without care or contact relief, would not itself constitute an order within s 1(1)(d).
4. Welfare orders. It was in KA’s best interests to remain in his mother’s care and spend time with his father in both country Q and the United Kingdom. It would benefit him if the mother could return with him to the United Kingdom and resume her medical training. The court therefore made orders and recitals to that effect, leaving detailed arrangements to parental agreement.
5. The father was required to secure the lifting of the travel ban by 30 June 2025. Until then, the parties were given further time to negotiate. Once lifted, the ban should not be reimposed while KA remained habitually resident in the United Kingdom, subject to review if the father returned to live in country Q. Failure to comply could amount to contempt of court.

The judgment describes earlier case-management hearings before Judd J and Mr Justice Cusworth. In an earlier judgment, the court determined that KA remained habitually resident in England and Wales. The present judgment was the final substantive hearing and made welfare and travel-related orders.