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Brother and sister remain habitually resident in England and Wales, High Court rules

A brother and sister who have been living with their grandfather and aunt in Libya for almost two years remain legal residents of the UK, the High Court has ruled.

Both parents are Libyan citizens, and both come from wealthy families. After marrying in 2007 they moved to the UK to attend university and start a family. Their son and daughter are now aged 12 and 13 respectively. In addition to being British citizens, the children also hold Libyan citizenship thanks to their parents.

In 2020, the father travelled back to Libya with the children to visit his family. Sitting in the High Court, Mr Justice Peel explained:

“[The mother] says this was without her knowledge or consent. [The father] says it was for a pre-planned and agreed summer holiday, intending to return with them to the UK. He says that upon return they would all continue living in England until the end of 2021, whereupon the whole family would move to Libya where he planned to take up a university post. Either way, the children were placed by [the father] with his family, principally his father and sister (the children’s paternal grandfather and aunt) in Tripoli.”

Shortly after their arrival however, events took an unexpected turn. The children announced that their mother abused and neglected them. Their grandfather reported this to the mayor of Tripoli and the Libyan police.

The mother has consistently denied these allegations and they have not been pursued in the English courts. Back in the UK, just a couple of days later, she went to the police and alleged that the children had been abducted by their father. This appeared to have “led to a family falling out” to quote Mr Justice Peel. She followed up the case with the police, spoke to social services, sought legal advice and tried to negotiate with the father’s family. By this point, the father had returned to the UK, leaving the children with their grandfather. He was taken in for questioning and charged with child abduction, but this was later dropped.

In June 2021 the mother finally applied in court for the return of the children. She intended to resume care of her children as soon as she could, she declared.

The children were declared wards of court, meaning they were placed under legal protection, and a court official, called a tipstaff, ordered the father not to leave the UK.

Not long afterwards, a Libyan court declared the grandfather the children’s guardian, and also issued a ban on the removal of the children from Libya without his permission. Both the mother and father applied in the Libyan courts to have the guardianship order overturned and both these applications are still in progress.

Later the same month, High Court Judge Mr Justice Poole ordered the return of the children to the UK, saying that they should live with their mother until a further family court hearing had taken place.

The father initially expressed support for the return, but insisted he would not be able to persuade his father (the children’s grandfather) to co-operate. As the case progressed, however, he shifted his position, claiming the children were now fully settled in Libya and had no desire to return to the UK. He also challenged the jurisdiction of the English courts in the case.

As a result, High Court Judge Mr Justice Moor postponed enforcement of the return order and ordered the production of further evidence, including new statements and a report on the children’s “wishes and feelings” by Cafcass.

At a subsequent High Court hearing, Mr Justice Peel was tasked with considering the jurisdiction issue: should the ongoing case in the English courts be brought to an end, and the proceedings transferred to the Libyan courts? And if not, should the return order be reinstated?

The Judge noted that while the siblings were looked after relatively well in Libya:

“Both children clearly miss their parents and want to be with them. It seems to me that this strength of bond with their parents, and obvious yearning to be with them, demonstrates that their preferred family environment would be with their mother and father.”

Under English law the concept of ‘habitual residence’ – the country with which a person has the closest ties – is central to international disputes concerning children. A child’s habitual residence may not be the country in which they are living at the time of a particular family dispute.

In this case, the Judge noted that in English law, the habitual residence of a child is normally determined by that of their parents, and in this case, both the children’s parents had become habitually resident in Britain. In addition, their deepest links were with the UK:

“For the entirety of their lives, they were brought up in England, in a family and societal environment here. Their centre of interests was this country, in large measure because of their parents. Those deep links with their parents have been abruptly severed.”

Therefore, he concluded, the siblings remained habitually resident in England, despite currently living in Libya. That meant in turn, that the ‘forum conveniens’ – the appropriate jurisdiction for their case – was indeed the English courts.

Nevertheless, the Judge concluded that further consideration needed to be given to the general welfare of the children before the return order could be reinstated. He sent the case back to the lower courts for a further hearing.

He noted:

“Behind the complex legal arguments on jurisdiction advanced before me is the depressing fact that at present these two children who are growing up without the society of either parent.”

Read the full ruling here.