Jurisdiction over Absent Child

Al-Habtoor v Fotheringham (CA TLR 2 March)

By s2 of the Family Law Act 1986, a court in England and Wales had no jurisdiction to make a custody order unless on the relevant date the child concerned was habitually resident in England and Wales. Residence is a question of fact. A person might cease to be habitually resident in a single day if he quitted the country with a settled intention not to return but to take up habitual residence elsewhere. By contrast, habitual in the second country was not acquired on arrival but only after a period that demonstrated that the residence had become habitual. In this much-publicised case, the mother was an airhostess who had met the father, who belonged to an extremely affluent family, in Dubai. Their relationship ended after she had given birth to their son, Tariq, in 1991. The mother married Neil Fotheringham in 1994 and they subsequently adopted Tariq. In 1998 as a result of the mother approaching Tariq’s natural father, the Fotheringhams relocated to Dubai where Neil Fotheringham was employed at a hotel owned by the natural father’s family. The two families fell out and the natural father, having taken advantage of a contact visit by Tariq to retain him against his mother’s will, obtained a without-notice order for custody. The mother returned to England and began wardship proceedings. There was strong evidence that the family had surrendered their habitual residence in England when they left for Dubai and accordingly the court had no jurisdiction to make a wardship order in respect of Tariq. The English courts should be extremely circumspect in assuming any jurisdiction in relation to children physically present in some other jurisdiction, founded only on the basis of nationality particularly where the order, as in the instant case, was unenforceable and thus empty. Parens patrae jurisdiction had a fine resounding history, but its practical significance had been much diminished domestically since the codification of much child law within the Children Act 1989. In order to achieve essential collaboration internationally, had been necessary to relax reliance on concepts understood only in common law circles. If there was to be progress in the development of understanding and collaboration in international family law, it was vital that the courts should attempt to build bridges over the divide rather than to issue empty challenges.