AH (A Child) (Jurisdiction: Habitual Residence: Section 2(1)(b)(i) Family Law Act 1986), Re

Habitual residence is determined by a global, child-focused assessment of the relevant connections, including stability, integration, schooling, family relationships and parental intentions. A child may become habitually resident in a country during a temporary relocation if the residence is stable and sufficiently integrated.

Divorce proceedings remain “continuing” for Family Law Act 1986 purposes unless dismissed, even where jurisdiction is challenged or the proceedings are adjourned rather than stayed. Jurisdiction under section 2(1)(b)(i) may therefore arise, but the court may decline to exercise it where another forum is clearly more appropriate. Welfare proceedings were stayed because India was the child’s habitual residence, the parties and witnesses were there, and English orders could not be directly enforced there.

The mother applied for the return of her six-year-old son from India under the Children Act 1989 and the inherent jurisdiction. She alternatively sought child arrangements orders and a Hemain injunction restraining the father from pursuing divorce proceedings in India.

The parents, both British citizens with Overseas Citizen of India status, had moved with the child from England to India for the mother’s employment. The father later removed the child from the matrimonial home without notice and restricted the mother’s contact. The central issues were the child’s habitual residence, jurisdiction under section 2(1)(b)(i) of the Family Law Act 1986, the parens patriae jurisdiction, forum conveniens and the Hemain injunction.

1. Habitual residence. The child was habitually resident in India when the proceedings were issued. The family’s centre of interests shifted over approximately four months and the transition was complete by the end of February 2024. The child had thereafter lived in India for about 21 months, attended school there, formed friendships and lived in a stable family environment. The parents’ intention to return to England after the mother’s employment ended did not prevent the acquisition of habitual residence in India.
2. The case was distinguishable from A v A, because the child had already become habitually resident in India before the father let the English property and removed him from the matrimonial home. The Hague Convention therefore did not confer jurisdiction, and the court could not make section 1(1)(a) or section 1(1)(d) orders on that basis.
3. Section 2(1)(b)(i). The English divorce proceedings were “continuing” under section 42(2) of the Family Law Act 1986. They had not been dismissed. A live jurisdiction challenge did not alter that position. Nor did an adjournment for evidence and a further hearing amount to a stay. The court therefore had jurisdiction to make a section 1(1)(a) order.
4. Forum conveniens. Applying the approach in V v M (A Child), India was clearly the more appropriate forum. The child, parents and relevant witnesses were there; India could conduct a welfare investigation; and an Indian expert would be better placed to assess local conditions. An English order could not be directly recognised or enforced in India and would lead to duplication, delay and further costs. The proceedings were therefore stayed.
5. No immediate summary return was appropriate. The move to India had originally been mutually agreed, the child had become habitually resident there, and a full welfare investigation was required. The father’s unilateral removal and restriction of contact were criticised, but the court declined to make interim welfare orders and urged the father to facilitate unsupervised contact pending proceedings in India.
6. Hemain injunction. Although the father’s conduct in issuing Indian proceedings while asking the mother to delay English proceedings could potentially justify relief, he obtained no tactical advantage. The two proceedings were progressing in parallel and the jurisdictional issues were timetabled. The injunction was therefore refused.