Summary
The proceedings are in respect of two children born in 2007 and 2008, respectively.
The parties to the proceedings were both of Bangladeshi origin. The father had come to England some years ago. The parties married in Bangladesh in 2005, and the mother came to England where both children were born. The children are both British nationals.
In 2008, the family traveled to Bangladesh, but only the father returned. There were proceedings in Bangladesh, but the father’s case was not resolved to his satisfaction.
On 4th February 2013, the father made an application in wardship, seeking the children’s return from Bangladesh to England.
On 24th September 2013, Mr Justice Jackson declined for the English court to exercise jurisdiction.
An appeal was made before the Court of Appeal. Although the Court of Appeal held that the English courts had jurisdiction under Article 10, it was held that no jurisdiction should be exercised in this case. Lady Justice Black held:
“53 In those circumstances, working, as the judge did, upon the basis that the father's case as to wrongful retention is accepted, jurisdiction is retained in the courts of England and Wales by virtue of Article 10 and has not been lost, because the children have not yet acquired a habitual residence in another Member State. To decide that there is jurisdiction is not, of course, the same as deciding that jurisdiction will be exercised. That is separate question, to which I will return.”
[…]
73 In short […] I can see no solid reason in the interests of the children to continue the proceedings further and I consider that the appropriate outcome is that they should end with no order made. It would not help the children if the court were to make an immediate return order without the information required to determine reliably whether that would be conducive to their welfare. Neither would it be in their best interests, in my view, to divert the focus from whatever is being done locally in Bangladesh to resolve the disputes about their care by protracting the English proceedings in an attempt to investigate the situation there so as to provide the English court with more information. In any event, it seems to me so unlikely that an English court would make a return order on the facts of this case, even after further investigation, that it would be futile to remit the case to the Family Division for further hearings.” [2014] EWCA Civ 1101 [53 and 73].