(Court of Appeal; Thorpe and Black LJJ and Sir Henry Brooke; 8 July 2011)
The father was a British citizen of Afghan origin and the mother was Afghani. The mother and father married in Afghanistan, mother first came to Britain after the birth of her child who remained in Afghanistan in the care of the uncle. After a few years the mother left the father alleging domestic violence. Shortly afterwards the child was allegedly ‘abducted' from the uncle's home and the whereabouts was not known to the court. The mother claimed the father was concealing the whereabouts of the child. The mother issued wardship proceeding. The judge clearly believed the father was concealing the whereabouts of the child and ordered him to bring the child into jurisdiction. The father challenged the jurisdiction of the court even though he claimed that he wanted the child to live in England if he could be found. The judge considered that the child was habitually resident in England, given his parents' habitual residence, and that the court therefore had jurisdiction. Orders were made against the father with penal notices attached.
Appeal allowed. No jurisdiction over the child who was never habitually resident in jurisdiction or present. Wardship discharged.