Part I of this article is available separately, and it is worth reading the two together. Only then does the full picture begin to emerge not just of what happened, but of why it matters. The next step in this already protracted case brought the matter before the Family Division of the High Court, by way of an application under the court’s inherent jurisdiction. From the outset, the urgency was clear. The English court was being asked to step in where another system had, despite considerable effort, failed to secure compliance.
It was made plain from the very beginning that the mother had shown a consistent and troubling pattern: a refusal to comply with orders made in the other jurisdiction, without reasonable explanation or justification. This was not a case of misunderstanding or procedural delay. It was, quite simply, a disregard for the authority of the court and the process itself.
Before anything else, the court quite properly turned to the question of jurisdiction. By this stage, more than two years had passed since the children had last been in England and Wales. The issue, therefore, was whether their habitual residence had shifted in the meantime – particularly given that Hague proceedings, and later enforcement proceedings, had been ongoing throughout.
The mother’s position was that it had. Her legal team pointed to the children’s day-to-day lives: their schooling, medical care, and what was described as their “settlement” in the new country. On the face of it, these are factors the court cannot ignore.
On behalf of the father, however, a different argument was advanced. Habitual residence, we submitted, cannot simply be reshaped by the passage of time where that time is rooted in an unlawful removal or retention. To allow otherwise would risk rewarding non-compliance – a deeply problematic outcome in cases of this nature.
The court agreed that it had jurisdiction.
The judgment confirmed that there had been no change in the children’s habitual residence. In the context of this case, that was a significant and hard-fought success. It reaffirmed a principle that lies at the heart of international child abduction law.
But it was, as it quickly became apparent, only one part of a much larger battle.
The central issue remained: whether the English court would make a mirror order for the return of the children.
A final hearing was listed for two days. There had been no prior fact-finding hearing, nor any expert reports. The case would turn largely on the evidence of the parties themselves.
What followed was, to put it mildly, unexpected.
At a very early stage in the hearing, the judge indicated in firm terms that a mirror order would not be made. More striking still was the decision not to permit cross-examination of the mother by the father’s legal team. Contrastingly, the father was allowed to be cross examined, but the overall direction of the hearing had already been set at the very beginning by the Judge’s clear indication.
In particular, the court expressed concern about the father’s approach to enforcement – including, for example, the potential involvement of coercive measures such as arrest. It was suggested that this approach was, in effect, as problematic as the original removal of the children from the jurisdiction.
That comparison is a difficult one to reconcile.
The reasoning behind the court’s position was set out only briefly, and largely within the recitals of the order itself. A request for a full judgment was refused.
For those involved, this was not simply surprising; it was deeply concerning. The decision, in our view, risks setting a precedent that could have far-reaching consequences in future abduction cases. Issues of enforcement, it was argued, should be addressed if and when enforcement is actively pursued; not pre-emptively, and certainly not at the expense of a return order.
Yet that is precisely what happened.
The proceedings ultimately concluded by way of a consent order, only given the clear direction from the Judge that a return order would not be made, dealing primarily with contact arrangements for a period of 12 months, with the matter to return to court thereafter for further consideration and a final order. Our client agreed to those arrangements, but not without significant hesitation and only in the face of a Court that had decided against him.
His concerns were well-founded.
The order provided, among other things, for enforcement proceedings in the other jurisdiction to be effectively put on hold, and for direct contact to take place under supervision. The court was expressly warned that the system abroad operates differently – that supervised contact is not readily available outside the involvement of a court-appointed guardian. Despite this, the order placed responsibility for arranging such contact on the mother.
The same mother who, for over two years, had failed to engage or to respect any Court orders previously made.
In practical terms, this left our client in an extremely difficult position.
Just one aspect of the order fell outside the parties’ agreement: the court’s refusal to order the children’s return.
In light of everything that had come before: the history of non-compliance, the failed enforcement attempts, and the very real risk of losing any meaningful relationship with his children – the decision was taken to try to appeal that single, critical paragraph.
For the father, this was not about prolonging litigation. It was about ensuring that, at the very least, he could say he had done everything within his power to remain a part of his children’s lives.
And so, the case continues.
Disclaimer
This article is based on matters arising from the author’s professional experience. All identifying details have been removed or altered to preserve client confidentiality.
The content is provided for general information purposes only and does not constitute legal advice. It should not be relied upon as a substitute for obtaining advice specific to individual circumstances.
Whilst reasonable care has been taken in the preparation of this article, no responsibility is accepted for any reliance placed upon it.
