The British father, of Afghan origin, travelled back to Afghanistan to marry. His wife, the mother, planned to come to England but had never left Afghanistan when their first child was born. Her subsequent journey (alone) to England may have resulted in her own habitual residence being established in England, but clearly could not affect that of the child, which was understandably conceded by experienced counsel to be in Afghanistan. The request had been made in order to compel the father to bring the child to the jurisdcition. F resisted saying that the child had never been within this jurisdiction it could not be held that he was habitually resident here.
Held: ‘ the appeal should be allowed, the orders of Judge Cliffe should be set aside and the wardship in relation to both the children discharged. The wardship in relation to SH is discharged because there is no jurisdiction over a child who is not and has never been habitually resident or present here. The wardship is discharged in relation to his sister, who is here, because whatever orders are required in her case can more properly be made under the provisions of the Children Act 1989. Once the proceedings in relation to SH are dismissed the father is clearly entitled to the return of his passport and this court will make whatever order or direction is necessary for its release.’
Judges:
Thorpe, Black LJJ, Sir Henry Brooke
Citations:
[2011] EWCA Civ 796, [2012] 1 FLR 23, [2011] Fam Law 1071
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 15 September 2022; Ref: scu.441589