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H v R & Another [2022] EWHC 1073 (Fam)

Peel J determined jurisdictional issues in respect of two children who have been living with family members in Libya since August 2020.

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Background (§4-21)

The parents are both Libyan, from well-off Libyan families. They married in 2007 and came to England for postgraduate studies in 2008. A, a girl now 13, and B, a boy now 12, were born in England and lived here until August 2020. They travelled to Libya for visits and A was taken there for 10 months by M in 2009. By March 2021 both parents had acquired indefinite leave to remain in the UK. The children are also Libyan.

F took the children to Libya in August 2020 for what he says was a planned, agreed holiday with his family although M says it was without her knowledge or consent. The children made allegations to the paternal family about how M treated them, which were reported to the local mayor and police. Meanwhile M, who denies the allegations, reported to police in England that the children had been abducted and also raised concerns with social services and took legal advice.

On 2nd June 2021 M made an application for wardship and return orders, which was first considered at a without notice hearing on 4th June 2021. Her supporting statement made it clear that she sought to resume the children's care. The children were made wards of court and tipstaff orders made which prevent F from leaving the country.

Meanwhile paternal grandfather (PGF) was granted a guardianship order in Libya on 6th June 2021, with a travel ban that prevents the children's removal from that country without his consent. Both parents have applied in Libya for those orders to be discharged but the proceedings are ongoing.

On 17th June 2021 at an inter partes hearing Poole J confirmed the wardship and ordered the children's return, providing that the children should live with M until a further hearing. F's position initially was that he supported the children returning but that it was not within his power to achieve this. In November 2021 he changed his position, challenging jurisdiction and saying that A and B were settled in Libya and wanted to remain. Moor J stayed implementation of the return order and made directions for statements,  an expert report on Libyan law and a Cafcass wishes and feelings report.

Law

• The parens patriae jurisdiction is not available as the children are not British nationals (§22)

• Because M sought, and obtained, substantive child arrangements orders her application comes within s1(d)(i) of the Family Law Act 1986, whereas had she sought only a return order under the inherent jurisdiction, it would not have done so. (§23-27)

• The court looks next at s2(3) of FLA 1986, first considering whether the Hague Convention 1996- the first port of call- applies. (§28-32)

• The court considered whether it must determine the children's habitual residence at the date the court was seised or the date of the hearing. If the 1996 Hague Convention applies then pursuant to Art 5 jurisdiction can shift if the child acquires a new HR during proceedings. Libya is not a signatory to that Convention and so Art 5 does not come into play; instead national law applies. One therefore returns to FLA 1986. Sections 1, 2, 3 and 7 cumulatively provide that the court has jurisdiction if the children were HR in England and Wales at the date of the application. (§33-49)

• It was unattractive and arguably illogical for F to have consented to the making of the order of 17th June 2021 and then to reverse his position and challenge the court's jurisdiction. Nevertheless M did not make a submission either that res judicata applied or that, if Art 5 applied, the relevant date was 17th June 21 when a substantive welfare order was made. The Judge therefore did not think he should reach a conclusion based on those grounds and did not need to. (§50)

• Art 7 of the 1996 Hague Convention, which deals with the retention of jurisdiction in cases of wrongful removal/retention, does not apply because Libya is not a signatory. (§51-58)

Habitual residence (§59-72)

Although the children seem generally happy and well cared for in Libya, attend school and have health provision, extra-curricular activities and friends, they both miss their parents, whom they yearn to be with. This demonstrates that their preferred family environment would be with their parents. Their familial integration should be seen primarily in terms of their parental context rather than grandparental/aunt context. They have endured seismic changes; their deep links with their parents have been abruptly severed, without parental consent and because of the coercive steps taken by the paternal family.

Accordingly they remained HR here at the date of M's application; indeed the Judge considered that they remain HR here as at April 2022.

Forum Conveniens (§73-78)

The Embassy of the State of Libya, which had been joined as an intervener by Moor J in November, argued that this was an matter for the Libyan court, also pointing out that the Libyan court is not obliged to give effect to orders made here.

As both parents live here and have engage in the litigation here, the children are HR here and the court has reports from an expert in Libyan law and from a highly experienced Cafcass officer, the convenient forum is the High Court of England and Wales.

Welfare

A further hearing was listed to consider the welfare issues and in the meantime Peel J declined to provide for enforcement of the 17th June 2021 return order.

Case summary by Gill Honeyman, Barrister, Coram Chambers

For full case, please see BAILII