England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		23 September 2013

Mr Justice Peter Jackson:

1. These proceedings concern a girl born in 2007 and now aged six and a boy who is a year younger. They arise from an application in wardship brought by the children's father on 4 February 2013, seeking their return from Bangladesh to this country. The application was served on the children's mother later that month, but she has played no part in the proceedings.
2. The brief history is that the father, who originates from Bangladesh, came to the United Kingdom some years ago and has obtained British citizenship. He and the mother were married in Bangladesh in 2005, following which the mother came to live in England, where the children were born. Both children are British citizens, while the mother was in possession of a spousal visa.
3. In May 2008, the parents and children travelled to Bangladesh. In August 2008, the father returned to England alone. It is his case that the mother and children were initially detained there by the mother's family and that subsequently the mother has refused to return the children to England. Based upon a translated scrap of information from Bangladeshi proceedings that the father has produced, the mother's case appears to be that she and the children were abandoned by the father and offered protection by her family.
4. At all events, there have on the father's account been at least two sets of proceedings before the Bangladeshi court. One action issued by the father in April 2009 were dismissed in October 2009, while another brought by him in January 2011 for custody and restitution of conjugal rights is said to have been successful in July 2011. The father wishes to enforce that order and says that those proceedings are ongoing. His Bangladeshi lawyers have advised him that an English order for return would "carry a highly persuasive value" in those proceedings and it is on that basis that the father has issued his wardship proceedings.
5. While all this has been going on, and the father has visited the children in Bangladesh during the course of three extensive visits between 2009 and 2012, totalling over two years in all. Since returning to the United Kingdom, he frequently speaks to them on the telephone.
6. The father's application came before this Court on the day that it was issued and Mr Justice Cobb directed him to file a skeleton argument setting out the basis upon which it was being made. That has now been done, and the matter has finally been argued on the father's behalf by Mr de Mello. He contends that this Court has jurisdiction to make an order about these children on either founded on the Family Law Act 1986, based on the contention that the children were habitually resident in the jurisdiction on the date of the issue of the proceedings, or that they are British citizens, relying on the recent decision of the Supreme Court in Re A (Children) [2013] UKSC 60.
7. If he persuades the court is that it has jurisdiction, the father seeks an order requiring the return of the children to this country. He attests that the children are suffering neglect in the mother's care and that she is disobedient to the order of the Bangladeshi court.
8. Having considered the father's arguments, my conclusions are as follows:

(1) As to the first possible basis upon which jurisdiction might be founded, I do not consider that these children were habitually resident in this jurisdiction on 4 February 2013, regardless of the circumstances in which they remained in Bangladesh in August 2008. Taking account of all factors and applying the test adopted by the European Court, on no sensible analysis could this country be regarded as "the place which reflects some degree of integration by the child in a social and family environment". The children left the United Kingdom at the age of about 14 months and 6 weeks old, and by the time the proceedings were issued, they had spent nearly 5 years in Bangladesh. Even if (taking the father's case at its highest) they had been unlawfully retained in that country by the mother, they have as a matter of fact long since ceased to be habitually resident in this country.

(2) As to the second possible basis for this court to intervene, it is true that these children are British citizens and that, following Re A, there is now at least a theoretical basis for exercising jurisdiction on that basis alone. The circumstances in which the jurisdiction might be exercised will be unusual, but each case will depend on its facts. In this case, I am clear that it would be inappropriate for this court to claim jurisdiction in circumstances where the court in Bangladesh has long since been seized of the matter and where the father is undoubtedly able to press his case before the court. The argument that an order from this court might assist him in those proceedings cannot be of any weight in these circumstances, particularly as the father has apparently not taken any active legal steps to enforce the 2011 custody order locally.

(3) For the same reason, even if the father had been able to establish by some means that the children continue to be habitually resident in England, I would not have been willing to make the orders that he seeks. It would not be right for this court, on the basis of such limited information, to interpose itself between the parties when the court in Bangladesh is already engaged and where the relief sought (the peremptory return of the children to this country) has such potential consequences for them. There will be cases where the English court makes orders and issues requests in relation to children beyond its territorial jurisdiction and it is important that such orders and requests are only made in proper cases, otherwise they may fall into disrepute.

9. I therefore decline to exercise the wardship jurisdiction in this case and dismiss the proceedings. In doing so, I express no view whatever about the merits of any disagreement between the parents, or about the welfare of the children, these being matters that should properly be resolved, if need be, by the courts in Bangladesh.