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New judgment on habitual residence takes lockdown into account: Re I and L (Children): [2020] EWHC 893 (Fam)

Date:29 MAY 2020

A father's application for a prohibited steps order preventing the mother and the children returning to South Africa following a holiday in England was refused. It was in the children's best interests to return to their home in South Africa where they were habitually resident.

The applicant father (mother’s first husband), who lives in England, was legally represented. The mother (a litigant in person), lives in South Africa with the two children aged 8 and 6, and her second husband.

The father used the fact of the children’s presence in England for agreed contact over Christmas 2019 to secure jurisdiction under section 3(1)(b) of the Family Law Act 1986. Father’s application was for a prohibited steps order to prevent the mother returning to South Africa with the children.

Mostyn J conducted a welfare-based hearing to determine whether the children should return to the place of their habitual residence with their mother or whether they should stay in England in the primary care of the mother with significant contact with the father. On that basis, the mother would have to live apart from her new husband unless he agreed to relocate to England.

This was a factually complex case involving full oral evidence and a comprehensive enquiry on the part of the Cafcass Officer; against a backdrop of conduct by both parents which Mostyn J stated that:

“It is my clear judgment that up to this point both parents can be seriously criticised for their behaviour during the lifetimes of these girls.”

Ultimately the case turned on “welfare” and the “paramountcy principle" under the Children Act 1989, the father having used the occasion of agreed contact in England at Christmas time 2019 pre-emptively to avoid an application under the 1980 Hague Convention. The starting point under the Convention would have been that the children should be returned to their place of habitual residence.

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As to welfare, Mostyn J determined that the children’s welfare was his paramount consideration. He confirmed that the father would continue to have involvement in the lives of the children, which would further their welfare. Both children expressed their wishes to return to South Africa and those wishes were given due weight by Mostyn J, who also found that the physical, emotional and educational needs of the children would be best served by returning to South Africa being their habitual residence.

This case was heard in the midst of the Covid-19 national medical emergency. The case was successfully heard remotely via Zoom. The Judge noted that he did not consider either party to be at a disadvantage in seeing the parties on a computer screen rather than in person. This is interesting in light of the recent case, Re P (a child remote hearing) where the President of the Family Division decided it was inappropriate for the hearing to proceed as a video hearing due to the importance of seeing the mother’s responses in court and for other human reasons.

There is a final, ironic, “Covid” twist to this case, articulated in the penultimate paragraph of the judgement:

“At the present time there are no flights between London and South Africa. South Africa has barred entry to foreign nationals and all visas have been temporarily revoked. Plainly, the mother will not be able to return to South Africa with the children until it has been deemed safe to do so by both the UK and South African governments. Therefore, my order will provide that the actual return date will be on a date to be fixed following the filing of further written submissions by the parties.”

While the judge decided it was in the best interests of the children to return home to South Africa, given the global pandemic preventing their return, there may be a further impact on the welfare of these children given the uncertainty surrounding when they will be able to return.

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