ZZ vs AA – High Court of Justice – [2024] EWHC 1411 (Fam) – Case Summary

Relevant for:

Family law practitioners, international child abduction lawyers, immigration lawyers

This case concerned an application by Mr ZZ for orders under the inherent jurisdiction of the High Court for the return of his two sons from India, where they have been since 1 September 2023. The respondent to the application is Mr ZZ's wife and the children's mother, Ms AA.

TLDR:

• Mr ZZ applied for the return of his children from India.
• The High Court determined it had jurisdiction as the children were habitually resident in England and Wales.
• The court found England and Wales to be the appropriate forum for the dispute.
• Ms AA did not attend the hearings and failed to comply with court directions.
• The children were made wards of court and interim contact was ordered.

Mr ZZ, of Pakistani origin and a British citizen since 2016, applied for the return of his two sons, CA (aged 10) and CB (aged 5), from India. The children had been in India since 1 September 2023 with their mother, Ms AA, an Indian national with indefinite leave to remain in the UK. Mr ZZ could not travel to India due to visa issues. The couple married in 2011 in Saudi Arabia and held a civil ceremony in City W in 2012. The children were born in 2014 and 2018.

Mr ZZ stated that in 2022, Ms AA became anxious and depressed after contracting COVID-19, leading to her inability to care for the children. In late 2022, she withdrew their eldest child from school and enrolled both children in an online school based in England. In 2023, she planned a trip to India, which Mr ZZ agreed to, expecting their return in November. However, the children's visas were extended, and they remained in India. In January 2024, Ms AA informed Mr ZZ that she would not return and had initiated proceedings in the Indian courts.

On 23 February 2024, Mr David Rees KC made an order for service of documents on Ms AA electronically. Ms Hannah Markham KC provisionally declared the children habitually resident in England and Wales and wrongfully retained in India. Interim contact was ordered, and the children were made wards of court. Ms AA did not attend the hearings or comply with court directions, disputing the court's jurisdiction and arguing that India was the appropriate forum.

At the hearing on 22 May 2024, Ms AA did not appear. The court was satisfied that she had notice of the hearing and chose not to attend. Ms Andrews, representing Mr ZZ, sought declarations of jurisdiction and forum conveniens, continuation of interim contact, and listing of the return order application for a final hearing. The court declined to make a return order at this stage, focusing on jurisdiction and forum conveniens.

The court found that the children were habitually resident in England and Wales on 22 February 2024, applying the guidance from Re A. The children's integration in City W, their British citizenship, and the temporary nature of their stay in India supported this finding. The court also determined that England and Wales was the appropriate forum for resolving the dispute, considering factors such as the children's connections to City W, the availability of evidence, and the stage of proceedings in both jurisdictions.

The court declared that the children were habitually resident in England and Wales and refused Ms AA's application for a stay based on forum conveniens. Directions were given for provision of the judgment to the Indian court and disclosure of relevant information from the children's GP and local authority. The matter was listed for determination of Mr ZZ's application for a return order.

Legal representatives: Ms Andrews (instructed by Avery Naylor) for the applicant

Judicial Panel: Ms Victoria Butler-Cole KC

Case Citation Reference: [2024] EWHC 1411 (Fam)