The Family team secure the return of a young child following her wrongful retention outside of the jurisdiction for almost two years

Following a recent High Court Judgment, Bethan Thomas and the family team have successfully secured the return of a young child who has been wrongfully retained in Zambia for almost two years.

Following a long court process, caused by extensive court delays, Mr Justice MacDonald has ruled in his recent Judgment reported as J v E (Habitual Residence), [2024] EWHC 196 (Fam) that the child was habitually resident in England and Wales as at the date of the father’s application to the court in June 2022, thereby granting jurisdiction for the English court to deal with the case. The court refused to order a stay of the proceedings, determining England and Wales as the most appropriate forum to adjudicate welfare issues in respect to the child. A return order was therefore made, on the basis that it is in the child’s best interests to return to England so that a full welfare assessment and fact-finding hearing can take place.

This recent judgment is a re-hearing of the Court of Appeal decision in   Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention)[2023] EWCA Civ 659, in which the family team successfully appealed a previous decision of the High Court which had ruled that the court did not have jurisdiction to deal with the matter. This incorrect decision led to the father’s application initially being dismissed. However, the Court of Appeal overturned that decision and provided important clarification regarding the need to avoid oversimplify the test for habitual residence. The Court of Appeal decision in Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention)[2023] is now considered the leading case on the jurisdictional rules in relation to abducted children and authority that Article 5 of the 1996 Hague Convention does not apply if a child is not habitually resident in any Contracting State at the relevant date and that the 1996 Hague Convention does apply even if the rival jurisdiction is not a party to the 1996 Convention.

If you require any advice or assistance regarding any aspect of family law, please do contact Bethan Thomas at [email protected].