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Marriage & Divorce

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  • The mother had wrongfully retained the son in England at the end of an agreed six-month visit, and then, after a court-ordered return to Ukraine, she had wrongfully removed him to England. In Hague Convention proceedings intended to secure his son's return, the father applied for disclosure of material generated during the child's successful application for asylum in England. This material, the father argued, formed the basis upon which he was being denied a remedy in the Convention proceedings. Prior to asylum being granted, orders had been made (and upheld) requiring the child's return. The question now was whether the court had locus or jurisdiction to take any further steps in the 1980 Convention proceedings or if they had come to an end by operation of law. Roberts J acknowledged the father's frustration at being unable to enforce the orders which he had secured, and the potential unfairness of an asylum process in which he had no right to see or challenge the evidence submitted. However, she dismissed the application for disclosure of the asylum file, describing it in part as little more than a fishing expedition into the prospects of a collateral challenge to the Secretary of State's decision. The child's Article 8 rights, those of his mother and the wider policy considerations underpinning the confidentiality of the asylum process tipped the scales firmly in favour of refusing disclosure. Different considerations might apply in proceedings under the Children Act 1989 or otherwise. The return orders would be set aside. Judgment, 08/10/2021, free
  • The applicant sought a declaration that she was currently married to the respondent, and brought her application pursuant to the provisions of ss 51 and 55 of the Family Law Act 1986. The parties agreed that they had been married in 2017. The questions included whether the parties had gone through a customary divorce procedure in Ghana, at which neither party was present, as claimed by the husband, and whether that divorce would be recognised here. Cobb J was satisfied that a customary divorce and its registration had taken place in Ghana. However, both parties had been habitually resident in the United Kingdom throughout the year immediately preceding the Ghanaian divorce ceremony (s 46(2)(c) FLA 1986), and so the divorce could not be recognised in England and Wales. The wife was entitled to pursue her petition for divorce in this jurisdiction. Judgment, 19/08/2021, free
  • The court had two questions to consider. Was the 12-year-old son habitually resident in the jurisdiction of England and Wales? If so, should the court grant the mother's application for an order under its inherent jurisdiction requiring the son to be returned from the jurisdiction of Pakistan? The father contended that the son was now habitually resident in Pakistan, where he was attending a private school. A report from the Cafcass Family Court Adviser detailed the son's understanding of the circumstances by which he came to be in Pakistan, including that he and his parents had discussed him attending school in Pakistan prior to his mother taking him there in October 2020, and that he had understood he would be staying there for a significant period of time. MacDonald J decided that the boy had demonstrated a degree of integration in a social and family environment in Pakistan sufficient to ground the conclusion that he was habitually resident there. For example, the boy had settled into his new school and clearly saw that education as his gateway to personal success. Accordingly, this court did not have jurisdiction, and the mother's application was dismissed. Judgment, 30/07/2021, free
  • Two young people of Spanish nationality, aged 17 and 14, applied to the court for declarations in respect of their status with a view to taking further proceedings to regularise their legal status. After being detained in France over the 2020 summer holidays as a result of applications made to the Spanish courts by the father, they were currently unable to travel outside of the jurisdiction of England and Wales for fear of their detention or retention, and the possible arrest of their mother. The applicants invited the court to consider making final orders that they would live with their mother, and they sought a new child arrangements order. Russell J DBE unhesitatingly accepted the submission that the facts of this case were exceptional, and it fell within s 9(7) of the Children Act 1989, so an order was required in respect of the older child despite her age. The circumstances of the case required an order reflecting the situation in real terms and releasing the applicants (and their mother) from any legal obligations to spend time with the father. There was no doubt that the children were habitually resident in this jurisdiction and that this court had jurisdiction over matters relating to parental responsibility for them. Judgment, 27/07/2021, free
  • The mother, a Sudanese national with indefinite leave to remain in the UK, applied under the inherent jurisdiction of the High Court for the children to be made wards of court and for an order mandating the return of the children to the jurisdiction of England and Wales from the jurisdiction of Sudan. That application was resisted by the father, a British citizen born in Sudan. In 2017 the mother and children had travelled to Sudan, for reasons that were disputed between the parties, and the mother alleged that the children's passports had been taken from her and not returned. A 2021 passport order had required the father to deliver up the passports of the children to the Tipstaff, as well as his own. The issues for the court to determine at this final hearing were whether this was an appropriate case for the court to exercise its residual parens patriae jurisdiction; if so, whether the children should be made wards of court and a return order granted under the inherent jurisdiction; and whether the passport order should continue or be discharged. In MacDonald J's view, it was not appropriate for the court to exercise its residual parens patriae jurisdiction. The children were habitually resident in Sudan, which was the convenient forum for determination of welfare issues, and the evidence demonstrated no sufficiently compelling reason that the children required the protection of this court. The mother's application was dismissed, and the passport order was discharged. Judgment, 12/07/2021, free

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