High Court of Justice (England and Wales), Family Division

High Court of Justice (England and Wales), Family Division

United Kingdom - England and Wales

2 August 2023

SA v AA

[2023] EWHC 2016 (Fam)

First instance

Article 7

• Article 5(1)
• Article 11

Children Act 1989, Family Law Act 1986

Not provided

This case concerned proceedings related to three British children who had lived in England throughout their lives before travelling with their father to Somaliland in August 2022. The mother agreed only to a three-month visit but was deceived into signing a document purporting to consent to permanent relocation. The father failed to return the children in October 2022. The court held that the mother had not acquiesced in their permanent removal and that their continued stay in Somaliland amounted to wrongful retention. The principal jurisdictional issue was whether Article 7 of the 1996 Hague Convention applies where the child has been wrongfully removed or retained in a non-Contracting State. Having reviewed conflicting first-instance authorities, the text of Article 7 and the Lagarde Report, the court held that it does. The reference in Article 7 to “another State”, rather than “another Contracting State”, was significant and indicated that Contracting States are required to apply Article 7 whether the child has been taken to a Contracting or non-Contracting State. The English court therefore retained jurisdiction. In the alternative, the court found that the children had not acquired habitual residence in Somaliland and remained habitually resident in England and Wales. Immediate return orders were made, together with protective orders in respect of the daughter concerning forced marriage and FGM.

The court held that Article 7 of the 1996 Hague Convention applies where a child is wrongfully removed or retained in a non-Contracting State. The mother had not acquiesced in the children's permanent relocation to Somaliland, having been deceived into signing a purported relocation consent. The children were therefore wrongfully retained when the father failed to return them after the agreed three-month holiday, and the English court retained jurisdiction under Article 7. In the alternative, the court held that the children had not acquired habitual residence in Somaliland and remained habitually resident in England and Wales, so that domestic jurisdiction also existed under the Family Law Act 1986. Immediate return orders were made, together with a forced marriage protection order and an FGM protection order in respect of the daughter.