ZZ v AA

I am concerned with an application by Mr ZZ for orders under the inherent jurisdiction of the High Court for the return of his two sons, CA (aged 10) and CB (aged 5) from India, where they have been since 1 September 2023. The respondent to the application is Mr ZZ’s wife and the children’s mother, Ms AA. Mr ZZ was represented at this hearing by Ms Andrews. Ms AA was not represented and did not attend.

Mr ZZ is of Pakistani origin but was granted indefinite leave to remain in the UK in 2014 and British citizenship in 2016. He states that due to his possession of a Pakistani origin document, he is not able to obtain a visa to travel to India.

Ms AA is an Indian national but was granted indefinite leave to remain in the UK in 2023. In October 2023, she was invited by the Home Office to attend a naturalisation ceremony within three months, but she has not taken up this invitation and so retains her Indian citizenship. Mr ZZ and Ms AA met shortly after Ms AA moved to the UK in 2006. In 2009 they moved to City W. They married in 2011 in a religious ceremony in Saudi Arabia and held a civil ceremony in City W in 2012. The children were born in 2014 and 2018.

Mr ZZ says that in around 2022, his wife caught covid, and thereafter became anxious and depressed, and was unable to care for the children. In late 2022, he says that Ms AA withdrew their eldest child from school, and instead enrolled him and his brother in an online school based in England in January 2023. Later in 2023, Ms AA said that she intended to go to India to spend some time with her family and to enable the children to visit India for the first time. Mr ZZ was in agreement with this plan.

Mr ZZ says that on 31 August 2023, he drove his wife and his children, and his wife’s sister AB who had been staying with them in City W, to the airport for a trip to India. He was aware they did not have a return flight booked, but he expected them to be back in City W in November. He was aware that the children’s visas expired in early November, and on around 4 November asked Ms AA to confirm when their flight back was arriving. He was told that she had applied to extend the visas so they could stay longer, and Mr ZZ agreed to this, although he was surprised to discover that his wife had taken the children’s birth certificates with her and had all the necessary documents to make the visa application from India. In due course, Ms AA confirmed that visa extensions had been granted to 14 February 2024 and that they would return shortly before that date.

From September to January, Mr ZZ had frequent video calls with his sons. He says that in the later part of that period, they told him that they missed him and wanted to come home. On 28 January, having not heard from his wife for two weeks, Mr ZZ received a call in which she said that she was not coming back to City W and that she had issued proceedings in the Indian courts, and would now only communicate with Mr ZZ through her solicitors.

The next day, Mr ZZ received a court summons from India, requiring his presence at a hearing on 29 February 2024 regarding an application for guardianship of the children. The application had been filed on 3 November 2023. Mr ZZ had one further video call with his children on 10 February 2024 but has not seen or spoken to them since. Mr ZZ contacted the online school the children had been enrolled with while in City W, and was told that they had been withdrawn from the program in the November or December 2023. He later realised that his wife had taken all of their wedding jewellery with her, and his personal hard drive which he used to back up his laptop. He says that he offered to his wife that if she returned with the children he would move out of the family home and support them, but she refused. He then issued his application on 22 February 2024.

So far as I am aware, no substantive orders have been made in the Indian proceedings. A hearing that took place on 29 February 2024 in India which Mr ZZ attended remotely was ineffective as there was no judge available. A further hearing on 10 May was also ineffective and the next hearing date is 3 September 2024.

On 23 February 2024, Mr David Rees KC sitting as a deputy High Court Judge made an order without notice to Ms AA, which granted permission for documents to be served on her electronically, and required her to file a statement setting out her position by 27 February 2024. A remote hearing was listed for 28 February 2024. Ms AA did not attend that hearing – the order incorrectly recites that it was made without notice to her, but correctly states that Mr ZZ had effected service on her of the order of Mr Rees KC by WhatsApp, and that Ms AA had failed to comply with the court’s directions. Ms Hannah Markham KC declared on a provisional basis that the children were habitually resident in the jurisdiction of England and Wales on the date they were removed to India and had been wrongfully retained in the jurisdiction of India without the consent of Mr ZZ. The court directed that the children should be made available for video contact with their father at least twice a week. The children were made wards of court. Ms AA was directed to file a statement by 5 April 2024 and a remote hearing was listed for 12 April 2024.

At the hearing on 12 April 2024 before Macdonald J, Ms AA did not appear. She had sent the court a letter dated 4 April 2024 setting out her position that she disputed the court’s jurisdiction, and that the appropriate forum for determining the children’s welfare was India. She opposed any order requiring her to return the children to England and Wales. The matter was listed to determine jurisdiction and forum conveniens on 22 May 2024 – that is the hearing I have conducted and in respect of which this judgment is given. Both parents were directed to file statements setting out their case. Mr ZZ complied with that order; Ms AA did not.

I determined that the hearing before me on 22 May 2024 should proceed in Ms AA’s absence. Mr ZZ confirmed that details of the hearing had been sent electronically to Ms AA, using the same method that had previously been successful (demonstrated by the fact of Ms AA’s letter of 4 April addressing the matters that had been directed by Ms Markham KC). I was satisfied that notice had been effected, and that Ms AA had apparently chosen not to attend the hearing or to comply with the court’s directions. I was also satisfied that there was no purpose in adjourning the hearing for further attempts to engage Ms AA to be made, and that it was in the children’s interests for the court to deal with the preliminary elements of Mr ZZ’s application promptly.

I therefore heard oral submissions only from Ms Andrews and read the documents in the court bundle.

In her position statement, Ms Andrews on behalf of Mr ZZ sought the following relief:

Ms Andrews proposed during oral submissions that the court could decide whether to make a return order at this hearing. I declined to do so, as the hearing had been listed to deal with jurisdiction and forum conveniens only, and, notwithstanding her lack of engagement, it would not have been fair to Ms AA to expand the scope of the hearing on the day. Ms Andrews agreed that the application for an injunction could sensibly be adjourned until the hearing of the return order application, the next hearing in the Indian courts not being until 3 September 2024.

I am therefore dealing in this judgment with two central questions:

I have decided that the court does have jurisdiction, on the basis that both children were habitually resident here on 22 February 2024, the date of Mr ZZ’s application, and that Article 5 of the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (‘the 1996 Convention’) applies. I have further decided that the appropriate forum for the issues to be determined is England and Wales.

The order sought for the return of the children can be framed either as a specific issue order under s.8 Children Act 1989 or as an order pursuant to the inherent power of the High Court (see Re NY (A Child) [2019] UKSC 49). If it is a s.8 order, then in the factual scenario relevant to this case, Part 1 of the Family Law Act 1986 applies such that the court has jurisdiction only if it has jurisdiction under the 1996 Convention, or if the child is habitually resident in England and Wales (s.1(1)(a), s(2)(1) and s.(3) FLA 1986).

Under the 1996 Convention, this court has jurisdiction, as a Contracting State, if the child is habitually resident here. Article 5(1) provides that “The judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child's person or property.”). This is so notwithstanding that India is not a Contracting State (Re A (A Child)(Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA Civ 659).

The relevant date for determination of habitual residence pursuant to the FLA is the date of the application being made (s7(c) FLA 1986). The date of the application is also the relevant date for the purposes of the 1996 Convention (London Borough of Hackney v P (Jurisdiction: 1996 Hague Child Protection Convention) [2023] EWCA Civ 1213.

If the children were habitually resident in this jurisdiction on 22 February 2024 but have since become habitually resident in India, then this court will only have jurisdiction under the 1996 Convention if the provisions of Article 7 of the 1996 Convention concerning wrongful removal are satisfied. There is a lack of clear authority as to whether Article 7 can be invoked at all where the children have been removed to a non-Contracting State. But in that case, I would not need to consider Article 7 as the habitual residence requirement under the FLA would remain satisfied. Arguments as to Article 7 only come into play if I find that the children’s habitual residence had changed to India before 22 February 2024. As that is not my finding, I do not propose to address the arguments made by Ms Andrews in respect of Article 7 in this judgment.

The primary question I have to determine is the habitual residence of the children as at 22 February 2024. I have considered and applied the guidance of the Court of Appeal in Re A. Habitual residence corresponds to the place which reflects some degree of integration by the child in a social and family environment, but the presence of some degree of integration is not determinative. There must be a sufficient degree of integration, which is a question of fact that requires a global analysis of all relevant information about the child’s circumstances. These may include the child’s life prior to moving country and following the move, the reasons for their stay, their nationality, their schooling, their linguistic knowledge, and their family and social relationships. The intentions of the parents are relevant to the global analysis, but they are not determinative.

Lord Wilson’s ‘expectations’ in Re B [2016] UKSC 4, cited with approval in Re A, are pertinent in the circumstances of this case:

The following factors are in my view relevant to the question of the habitual residence of CA and CB on 22 February 2024:

There is very little evidence from Ms AA about the children’s lives in India. As set out, I do not know if they are attending school, whether they have made friends, what activities they do, and whether they know that they are staying in India indefinitely. Although the boys had been in India for 6 months at the time Mr ZZ issued his application, it is my view, balancing all the considerations I have identified, that they remained habitually resident in the country where City W is located at that time. Their move to India was anticipated to be temporary and was not pre-planned in any meaningful sense. The children had a stable and secure life in City W and have left behind one of their parents who cannot travel to India easily or at all. There is little or no evidence as to their degree of integration into the family and social environment in New Delhi, beyond the fact that they are living with relatives. It is not clear that they are presently in India lawfully given that their visas expired in February, before Mr ZZ’s application was issued. The only information Ms AA has supplied is that the children have ‘thrived emotionally and psychologically in India, where they feel safe and have established supportive networks”. This is not sufficient to discharge the burden of demonstrating a change in habitual residence, in all the circumstances.

The court therefore has jurisdiction under both the 1996 Convention by application of Article 5, and the FLA. The next question is whether India is a more appropriate place for the determination of applications in connection with the welfare of the children. I adopt the summary of the applicable legal principles set out by Williams J in V v M (A Child) (Stranding: Forum Conveniens: Anti-Suit Injunction) [2019] EWHC 466 (Fam); [2019] 4 WLR 38. S.5 of the FLA provides that the court may stay an application for a Part 1 order if there are proceedings with respect to the matters to which the application relates continuing in another jurisdiction, and it would be more appropriate for those matters to be determined in that other jurisdiction.

There are proceedings underway in India in which Ms AA has sought guardianship of the children and has made a range of allegations of domestic abuse including daily physical violence against her and multiple instances of physical violence against the children, as well as threats of assault including throwing acid on her and the children. In the documents from the Indian proceedings that I have seen, she alleges that this behaviour started within a month of their marriage. She also alleges that Mr ZZ financially exploited her, taking her money to send to his family members. Specific allegations are made in respect of a stay in Pakistan with Mr ZZ’s family who live there, but the bulk of the allegations concern life in City W over the past ten to twelve years.

I have assumed that the Indian courts are capable of deciding whether the allegations are true, and making appropriate welfare decisions through a process that enables both parents to participate and be represented. Although Mr ZZ would be in difficulty attending court hearings in India in person, due both to immigration requirements and the practicalities, it appears that he will be permitted to participate remotely, although I do not know whether that permission extends to hearings at which oral evidence is given. Ms AA could attend court in this jurisdiction as she has indefinite leave to remain, but would also encounter practical difficulties given the cost of travel. She has to date been permitted to attend hearings remotely. It may be a little more difficult for the views of the children to be obtained and presented to this court, given their location, than it would be in India.

This family had, until September 2023, shared their lives together in City W. The allegations made by Ms AA largely concern events in City W and none concern events in India. Evidence from police, the NHS, social services, and professionals involved in the lives of the children, as well as friends of the family, will all come from City W. In contrast, the only witness in India is likely to be Ms AA’s sister who spent 2 months with the family in City W in 2023.

Ms AA contends that she could not obtain legal representation in this jurisdiction as it is too expensive, but has not provided any details of the costs of her representation in India, and in any event, may be entitled to public funding if her allegations of domestic abuse were pursued.

The Indian courts have not made any substantive orders, and have not, so far as I am aware, considered the question of the legality of the children’s continued stay in India despite the expiry of their visas.

Drawing the above together, I have concluded that Ms AA has not discharged the burden of showing that this is not an appropriate forum, or that India would be more appropriate. Ms AA’s primary concern is that the Indian courts should deal with her application so that the children do not have to return to City W. It does not follow automatically from a decision that England and Wales is the more appropriate forum for disputes to be resolved that the children would be required to return to City W or to the care of Mr ZZ. That issue will be determined at the next hearing in this matter.

I will therefore declare that the children CA and CB were habitually resident here at the time of Mr ZZ’s application and refuse Ms AA’s application for a stay on the basis of forum conveniens.

I will give directions for provision of this judgment and court orders to the court in India, and for disclosure from the children’s GP and local authority relevant to the allegations made by Ms AA. The matter will be listed for determination of Mr ZZ’s application for a return order.