B v H (Children) (Habitual Residence)
| Jurisdiction | England & Wales |
| Judgment Date | 2002 |
| Date | 2002 |
| Year | 2002 |
| Court | Family Division |
Children – Habitual residence – Mother Bangladeshi national resident in England – Father taking children to Bangladesh and refusing to return to jurisdiction – Eldest children born in England – Youngest child born in Bangladesh – Whether children habitually resident in England or Bangladesh – Whether court having jurisdiction to make orders in wardship proceedings.
The mother was a Bangladeshi national who had indefinite leave to remain in England. The father was a British citizen with dual British and Bangladeshi nationality. The three eldest children had been born in England and had British passports. The mother and the children had travelled from England to Bangladesh with the father in 1999 on the premise that it was to be a family holiday. At the time the mother was pregnant with her fourth child, H, and had not been willing to travel. However, following a disagreement between the parties, which resulted in a violent attack by the father on the mother, she claimed that she had felt compelled to go. The mother claimed that a month after their arrival in Bangladesh, the father had told her that she would not be returning to England and had taken away her passport and those of the children. However, the father had returned to England on a number of occasions. It was in Bangladesh that the mother had given birth to H. She claimed that once a passport had been obtained for H, she had suggested the family return to England, but that the father had reacted with violence. The mother had escaped and, by seeking the assistance of the Bangladeshi authorities, was able to return to England following a divorce from the father. She gave evidence that the relationship had become violent and that the father had threatened to kill both himself and the children if he was forced to return the children to England. She commenced wardship proceedings and sought an order under s 1(1)(d) of the Family Law Act 1986 for the care of all four children. Under s 3(1) of the Act, the court did not have the jurisdiction to make such an order unless the children were habitually resident in England and Wales. The mother had had no contact with them for a year, but she believed they were still in Bangladesh. Although the father had knowledge of the proceedings, he had chosen to take no part in them.
Held – (1) Young children and babies could not form the necessary intention to establish their habitual residence; it was the intentions of both adults with joint parental responsibility that were relevant. In the instant case, the three eldest children were all too young to acquire habitual residence through their own actions and intentions. Therefore, the essential issue was whether they had lost their habitual residence in the United Kingdom, which they had through their parents in 1999, rather than whether they had acquired a habitual
residence in Bangladesh. On the evidence, when the family had left England, the mother had not voluntarily, or as a matter of duty, or compulsion, with or without threats of violence, or to keep the family together, agreed to go and live in Bangladesh with the father and the children. Her intention and aim had been that she and the children should return to England and that England should be their home. In respect of the father, it had not been established, on the evidence, that his position and intention was that the children should have their home in Bangladesh. He himself had returned to England on a number of occasions. It followed that the three eldest children had not lost their habitual residence in England; Re J (a minor) (abduction: custody right) [1991] FCR 129, Re S (minors) (child abduction: wrongful retention) [1994] 1 FCR 83, Re KM (a minor) (habitual residence) [1996] 2 FCR 333, Re H (minors) (abduction: acquiescence) [1997] 2 FCR 257 and N v N (child abduction: habitual residence) [2000] 3 FCR 84 applied.
(2) As a general rule, the baby of a married couple, who were habitually resident in England at the time of the birth of the child, would also, at birth, be habitually resident in England, notwithstanding that he was born abroad. The issue was one of fact to be determined having regard to all the circumstances of the case and it was therefore possible that the intentions of the parents at the date of birth could found a different result. If the parents were at odds, at the date of the child’s birth, as to where she should have her home, one of two persons with joint parental responsibility could not unilaterally change the established order of life of the family and thus the habitual resident of the child at birth. Accordingly, in the instant case, the father was not able to unilaterally change the established order of the life of the family and thus H’s habitual residence at birth. For those reasons, H had been habitually residence in England on her birth and had not lost that habitual residence; Re M (minors) (residence)[1993] 1 FCR 718, Re KM (a minor) (habitual residence) [1996] 2 FCR 333 and N v N (child abduction: habitual residence) [2000] 3 FCR 84 applied.
(3) On the findings of the court, and in the absence of any active participation by the father, all four children had been wrongly retained by him in Bangladesh, and thus abducted. In those circumstances, the jurisdiction of the court in England, being the jurisdiction of the established matrimonial home before the abduction, was the proper and convenient forum to determine the medium to long term future of the children. On that basis the court ordered that all four children remain wards during their respective minorities, or until further order, and that their care and control should be given to the mother. Furthermore, notwithstanding the fact that the father was outside the jurisdiction of the court and the limits of that jurisdiction, the court had the jurisdiction to make an order against him in personam in, and in support of, the wardship pursuant to s 37 of the Supreme Court Act 1981. Accordingly, orders were made against the father that he return the children to the jurisdiction and to the care and control of the mother. Secondly, orders were made restraining him from removing them from that care and control or from England and Wales; Re KM (a minor) (habitual residence) [1996] 2 FCR 333, N v N (child
abduction: habitual residence) [2000] 3 FCR 84 and Al Habtoor v Fotheringham[2001] 1 FCR 385 applied.
Cases referred to in judgmentA (a minor) (wardship: jurisdiction), Re[1995] 2 FCR 298, [1995] 1 FLR 767.
A-Gs Reference (No 3 of 1994) [1998] AC 245, [1997] 3 All ER 936, [1997] 3 WLR 421, HL.
Al Habtoor v Fotheringham[2001] EWCA Civ 186, [2001] 1 FCR 385, [2001] 1 FLR 951.
F (in utero), Re [1988] FCR 529, [1988] Fam 122, [1988] 2 All ER 193, [1988] 2 WLR 1288, [1988] 2 FLR 307, CA.
H (minors) (abduction: acquiescence), Re[1997] 2 FCR 257, [1998] AC 72, [1997] 2 All ER 225, [1997] 2 WLR 563, [1997] 1 FLR 872, HL.
J (a minor) (abduction: custody right), Re [1991] FCR 129, [1990] 2 AC 562, [1990] 3 WLR 492, sub nom C v S (orse J) (minor: abduction: illegitimate child) [1990] 2 All ER 961, sub nom C v S (a minor) (abduction) [1990] 2 FLR 442, HL.
Kapur v Kapur [1984] FLR 920.
KM (a minor) (habitual residence), Re[1996] 2 FCR 333; sub nom Re M (abduction: habitual residence) [1996] 1 FLR 887, CA.
KR (abduction: forcible removal by parents), Re[1999] 2 FCR 337, [1999] 4 All ER 954, [1999] 2 FLR 542.
M (minors) (residence), Re[1993] 1 FCR 718, sub nom Re M (minors) (residence order: jurisdiction) [1993] 1 FLR 495, CA.
MB (an adult: medical treatment), Re[1997] 2 FCR 541, [1997] 2 FLR 426, CA.
Moir v Wallersteiner [1974] 3 All ER 217, [1974] 1 WLR 991, CA.
N v N (child abduction: habitual residence) [2000] 3 FCR 84, [2000] 2 FLR 899.
Nessa v Chief Adjudication Officer[1999] 3 FCR 538, [1999] 4 All ER 677, [1999] 1 WLR 1937, [1999] 2 FLR 1116, HL.
P (GE) (an infant), Re [1965] Ch 568, [1964] 3 All ER 977, [1965] 2 WLR 1, CA.
R v Newham London BC, ex p Dada[1995] 2 FCR 441, [1996] QB 507, [1995] 2 All ER 522, [1995] 3 WLR 540, [1995] 1 FLR 842, CA.
S (an adult: medical treatment), Re[1992] 2 FCR 893, [1993] Fam 123, [1992] 4 All ER 671, [1992] 3 WLR 806, CA.
S (minors) (child abduction: wrongful retention), Re[1994] 1 FCR 83, [1994] Fam 70, [1994] 1 All ER 237, [1994] 2 WLR 228, [1994] 1 FLR 82.
Shah v Barnet London BC [1983] 2 AC 309, [1983] 1 All ER 226, [1983] 2 WLR 16, HL.
ApplicationThe applicant mother commenced wardship proceedings, in respect of four children and sought an order under s 1(1)(d) of the Family Law Act 1986 that
they be returned to the jurisdiction from Bangladesh and to her care and control. The facts are set out in the judgement of Charles J.
CHARLES J. Introduction[1] These are wardship proceedings commenced by the mother of four children. The three oldest children M, R and A were born on respectively, 11 December 1992, 7 December 1993 and 8 October 1998. They were all born in England.
[2] The youngest child, H, was conceived in England but born in Bangladesh on 21 November 1999. H has never visited this country.
[3] The four children are all children of the marriage of the mother and the defendant to these proceedings (the father).
[4] The mother is a Bangladeshi national who has indefinite leave to remain in this country. She is at present living in England.
[5] The father is believed by the mother to be in Bangladesh. She also believes that all four children are in Bangladesh but at present she does not know exactly where they are. The mother has had no contact with any of the children since last year.
[6] The father and all four children have British passports.
[7] The originating summons was issued on 2 February 2001.
[8] The issues that are presently before me are whether this court has jurisdiction to make orders in the wardship proceedings commenced by the mother and, if it does, what orders the court should make.
The participation of the father in these proceedings[9] I am satisfied that the...
To continue reading
Request your trial
-
Za and Pa v Na
...strongly on the history and the findings below. 21 As to the law he submits that this case on its facts is on all fours with the facts in B v H (Habitual Residence: Wardship) [2002] 1 FLR 388 and Parker J rightly followed the path of that authority. Conclusions 22 Parker J, having recorded ......
-
Re G (Abduction: Withdrawal of Proceedings, Acquiescence, Habitual Residence)
...1 FLR 1589. Al Habtoor v Fotheringham[2001] EWCA Civ 186, [2001] 1 FCR 385, [2001] 1 FLR 951. B v H (children) (habitual residence)[2002] 2 FCR 329, [2002] 1 FLR F (abduction: unborn child), Re[2006] EWHC 2199 (Fam), [2007] 1 FLR 627. H (minors) (abduction: acquiescence), Re[1997] 2 FCR 257......
-
R A B V. M I B
...391; [2004] Fam Law 788 B v H (Habitual Residence: Wardship) sub nom B v H (Children) (Habitual Residence)FLRUNKUNK [2002] 1 FLR 388; [2002] 2 FCR 329; [2002] Fam Law 101 Cameron v CameronSC 1996 SC 17; 1996 SLT 306 Dickson v DicksonUNK 1990 SCLR 692 Findlay v Findlay (No 2) 1995 SLT 492 GE......