Al Habtoor v. Fotheringham [2001] EWCA Civ 186

INCADAT legal file Hague parental abduction

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Habitual Residence – Art. 3
The issue for the court was whether the child was habitually resident in England on 10 February 2000, the date on which the mother launched her proceedings. It was argued for her first that the trip to Dubai was no more than a reconnaissance and that the family retained their English habitual residence throughout. Alternatively it was submitted that if the family had lost its English habitual residence in the autumn of 1999 it was regained upon their return in January 2000; the child being dependent on his parents his English habitual residence reverted on that date too. These arguments were rejected by the Court of Appeal. The Court held that the trial judge had erred in not considering whether the family and thereby the child had lost their English habitual residence on departure to Dubai on 5 September 1999. Given the nature of the relocation the Court held that their English habitual residence was lost on that date. Subsequent developments in Dubai went to the issue of whether a habitual residence had been acquired there, but this was not relevant to to the issue of the jurisdiction of the High Court in February 2000. Nevertheless the Court ruled that a habitual residence had been acquired in Dubai sometime between arrival and the dispute between the maternal and paternal families in late December. The Court ruled that the mother’s alternative submission, that the child had a habitual residence of dependence which reverted in line with the mother’s, was wrong in law. The Court further held that there was no residual basis of jurisdiction based on the child’s nationality.
Non-Convention Issues
The Court of Appeal dismissed criticisms of the Dubai custody proceedings. It held that if the mother wished to challenge the propriety of the father’s litigation this should have been done in Dubai and not in competing proceedings in England. The Court added that in accordance with the principle of comity English courts should be should be very slow to make orders that directly conflict with pre-existing orders in any friendly foreign state.