Re AH: High Court stays child return application in favour of Indian courts

A High Court judge has stayed a mother's application for her six-year-old son's return to England from India, finding that the courts of India are better placed to conduct a full welfare investigation, notwithstanding his finding that the father acted unconscionably in taking the child without notice.

In Re AH (A Child) (Jurisdiction: Habitual Residence: Section 2(1)(b)(i) Family Law Act 1986) [2026] EWHC 1358 (Fam), Mr David Rees KC, sitting as a Deputy Judge of the High Court, determined that AH, born in England in 2019 to British citizens of Indian heritage, had acquired habitual residence in India by the time proceedings were issued in December 2025. The family had relocated to India from March 2024 for the mother's employment, and the judge was satisfied that AH had become sufficiently integrated into Indian life over the 21 months that followed.

Habitual residence and the Hague Convention

The mother argued that AH remained habitually resident in England and Wales, relying in part on the parties' original joint intention to return once her employment contract concluded. The judge rejected this, applying the principles summarised by Moylan LJ in Re F (A Child) (Habitual Residence) [2025] EWCA Civ 911. Whilst acknowledging that a joint intention to return had existed, the judge found it had been predicated on the assumption that the marriage would endure. AH had attended school in India, had been integrated into family and social networks there, and the family had moved with virtually all of their possessions. That the father had subsequently let out the family home in England without the mother's knowledge did not displace a habitual residence that had already been established. With the Hague Convention inapplicable, the court lacked jurisdiction under section 2(3) of the Family Law Act 1986 to make inherent jurisdiction orders concerning care, contact or education.

Jurisdiction under section 2(1)(b)(i) FLA 1986

The judge nevertheless found jurisdiction to make section 8 orders via the alternative route under section 2(1)(b)(i) FLA 1986, which applies where the question of making a children order arises in connection with continuing matrimonial proceedings. The father contested this, arguing that his challenge to the English court's jurisdiction over the divorce meant the proceedings were not "continuing," and that the district judge's order of 27 April 2026 had effected a stay.

Both arguments were rejected. Applying section 42(2) FLA 1986, the judge held that divorce proceedings remain "continuing" unless and until dismissed, regardless of any live jurisdictional challenge. He further distinguished between a stay, which imposes a technical halt on proceedings, and a mere adjournment for the filing of evidence, which is what the district judge's order had done. The broad approach endorsed by Moylan LJ in Re T (Children) (Jurisdiction: Matrimonial Proceedings) [2023] EWCA Civ 285 and Re S (Children: Parentage and Jurisdiction) [2023] EWCA Civ 897 was confirmed as applicable.

The forum conveniens exercise

Having established jurisdiction, the judge declined to exercise it, staying the proceedings under section 2A(4) FLA 1986. The factors favouring India were considerable: both parents and the child were present there, the Indian courts apply a welfare-paramountcy test, and expert evidence from Mr Ranjit Malhotra confirmed that no mechanism exists for the direct recognition or enforcement of English orders in India. Any welfare determination by this court would risk duplicating proceedings, with an Indian court conducting its own assessment de novo regardless.

The judge described the father's unannounced removal of AH on 23 December 2025 as "essentially a de facto abduction" and his subsequent restriction of the mother's contact as harmful to the child. He expressed hesitation at leaving these matters entirely to Indian proceedings but ultimately concluded that urging the father to agree unsupervised contact pending the first Indian welfare hearing was preferable to making orders that could not be enforced.

The application for a Hemain injunction restraining the father's Indian divorce proceedings was refused. Though the judge found the father had acted in bad faith in instructing his solicitors to delay the mother's English proceedings whilst simultaneously filing in India, no tactical advantage had been gained; both sets of proceedings were now proceeding in parallel on comparable timetables.

Katy Chokowry (Clarendon Law Solicitors) for the applicant; Mehvish Chaudhry (DMH Stallard) for the respondent.