UK court considers child abduction laws in recent appeal
The recent case Re H [2014] saw a father’s appeal to bring back his two children from Bangladesh dismissed, despite the father believing that the children were being unlawfully detained there and that they were at risk of significant harm.
The Facts
The High Court previously ruled that the courts had no jurisdiction to hear the case with Jackson J stating that although the fact the children were British citizens and could theoretically be brought back on this basis, the facts of the case showed that the Bangladeshi courts could sufficiently deal with any welfare problems.
Further, the judge found that the children were no longer habitually resident within the UK jurisdiction as they had been residing in Bangladesh since May 2008.
Habitually Resident: The place where a person ordinarily resides with the intention of dwelling there permanently.
The question also arose as to whether the father had abandoned his children in 2008 as stipulated by the mother, although the last time he had seen them was when he travelled to Bangladesh in November 2012. Phone calls and other indirect forms of contact between them had also been frequent.
Subsequently, the father (along with Reunite) launched an appeal of the High Court’s decision where four grounds or questions were put forward:
- Was there still a ‘rule’ that if two parents have parental responsibility, neither parent may unilaterally change a child’s habitual residence?
- The operation of Article 10 (which applies UK jurisdiction to a child who has been wrongfully removed or retained) relating to a child who has been wrongfully removed from a member state to a non-Member state.
- Was the judge wrong to decline the exercise of the doctrine of ‘Parens Patriae jurisdiction’? (I.e. could the judge make a decision to make an order for return?)
- Was the judge wrong to conclude that even if jurisdiction had been exercised, the orders would still not have been made?
Parens Patriae Jurisdiction: The judge’s power to award the State the right to make a decision on behalf of somebody who is unable to
The Decision
The Court of Appeal agreed with Jackson J’s judgement regarding the ‘rule’ that habitual residence was a factual question which should be applied to cases based on individual circumstances.
The facts remained that the children had been living in Bangladesh for over five years from a very young age, therefore there was no reason to be found to conclude that they were habitually resident within the UK jurisdiction.
Interestingly, the Court found no room for the ‘Parens Patriae jurisdiction’ based on the conclusion that jurisdiction existed under Article 10 which essentially ensures that where a child has been wrongfully removed or retained, the courts of the Member state where that child was habitually resident retains jurisdiction for a certain period which may come to an end at a specified time.
The Court found that it would not be appropriate to carry the case any further since the children had not been habitually resident within the jurisdiction for over five years. Furthermore, the Court concluded that it would be unlikely that any English court would make a ‘return order’ based on the facts of the case nor would it be wise to interfere with any efforts that had been made by the courts in Bangladesh.
Return Order: An order that a child is to be returned to a their country of habitual residence under the Hague Convention.
This case illustrates that the courts may be unwilling to order the return of a child (a British citizen) who has been taken to another country at an extremely young age and who has lived there for a significant number of years, especially if that country’s legal system can adequately deal with any issues that may come up. Although, it is worth noting that decisions relating to children’s matters will not always be identical.
If you have any questions about child abduction laws or need advice relating to family law then contact us. One of our specialist solicitors can advise you on all aspects of child law.
Guest post by Maria Javed. Maria is an intern at Grayfords and has recently graduated from BPP Law School having completed the Legal Practice Course. She is particularly interested in Family Law and Islamic issues.
