Article written by Atifha Aftab, Solicitor, Family department
The MZ v RZ (Hague Convention 1996. Habitual Residence. Inward Return) [2021] EWHC 2490 (Fam) case highlights the importance of mutual parental consent when it comes to children. In this scenario, both parents lived in England. The mother had taken their three-year-old daughter to India in March 2019, and returned without her, leaving the child with the maternal grandparents. Though born in England, the daughter was not yet a British citizen. In April 2021, the father applied under the inherent jurisdiction for a wardship order and return order.
Following the end of the couple’s tempestuous relationship, the mother flew to India with their then seven-month-old daughter, leaving her in the care of her grandparents. The mother returned to England and the child since remained in India for over two years. The father launched proceedings with a view to enforcing the girl’s return to England.
The case was complicated by the fact that India is not a signatory to the Hague Convention, the international treaty that aims to tackle cross-border child abduction. Although both parents had leave to remain in the UK, neither they nor their daughter were British citizens. In those circumstances, the question of whether the High Court had the power to intervene in the dispute hinged on whether the girl was habitually resident in the UK when her father made his application.
Ruling that she was, the Court noted that both parents were living in England when she was born and had continued to do so. Each had strong and settled roots in this country. The mother, who had not lived in India for many years, had continued to take long-distance responsibility for her daughter’s care, making important decisions concerning her upbringing.
The father had no meaningful connections to India and the mother had intended the child’s placement with her grandparents to be temporary, whilst she furthered her career in England. Having reached the age of three in India, the girl had spent most of her life there. However, there was no evidence that she had been integrated into Indian society and England remained her true focus point of stability in social, family and territorial terms. Her removal from this country was plainly wrongful and without the father’s consent.
Given his daughter’s continued habitual residence in this country, the father’s lengthy delay in taking legal action was not fatal to his claim. The Court’s ruling paved the way for him to seek orders making his daughter a ward of court and requiring the mother to arrange her return to England. In deciding whether those orders should be made, the Court would focus on the child’s welfare at a further hearing.
If your right to play a full part in your child’s life has been undermined by his or her wrongful removal from England, a specialist family lawyer can help you achieve a reunion. To discuss this Judgment or for further advice on a Family Law matter, please email me or contact the team on 020 8858 6971.