AH (A Child) (Jurisdiction: Habitual Residence: Section 2(1)(b)(i) Family Law Act 1986), Re [2026] EWHC 1358 (Fam)

[2026] EWHC 1358 (Fam)Case No FD25P00823
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
THE SENIOR COURTS ACT 1981
THE CHILDREN ACT 1989
IN THE MATTER OF AH (A BOY)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 8 June 2026
Before
MR DAVID REES KC(Sitting as a Deputy Judge of the High Court)(In Private)(Re AH (A Child) (Jurisdiction: Habitual Residence: Section 2(1)(b)(i) Family Law Act 1986))
Between
YHApplicantLHRespondent
Katy Chokowry (instructed by Clarendon Law Solicitors) for ApplicantMehvish Chaudhry (instructed by DMH Stallard) for RespondentHearing Hearing dates: 5-7 May 2026Approved JudgmentThis judgment was handed down remotely at 2.00pm on 8 June 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

Mr David Rees KC:

[1]I am concerned with AH, a six year old boy. This is an application by his mother for an order for his return to England from India either under the Children Act 1989 or under the Court’s inherent jurisdiction. In the alternative, the mother seeks child arrangements orders under section 8 of the Children Act. A separate application by the mother seeking a Hemain injunction restraining the father from progressing divorce proceedings in India is also before me.[2]The parents are both British citizens of Indian heritage. Both of them were born in India and were Indian citizens from birth. In 2004 they came to live and work in the UK. They were married in 2008 in a ceremony which took place in India, but continued to live and work in the UK and in 2014 they acquired British citizenship. This required them to renounce their Indian citizenship, as India does not permit dual nationality. However, they have both acquired the status of Overseas Citizens of India (“OCI”) which gives them a range of rights in that country, including the rights to enter it freely, and to live and work there.[3]AH was born in the UK late 2019. He is a British Citizen and holds no other nationality although he also has OCI status. It is common ground that he lived in the UK until at least November 2023 and would have been habitually resident there as at that date. It is also common ground that since at least March 2024 the parents and the child have all lived in India. However, there is a dispute between the parents as to precisely when that move to India took place.[4]The parties’ marriage broke down during the second half of 2025 and as I relate below, the parents have issued competing sets of divorce proceedings; the mother in England, the father in India. However, the immediate cause of the applications before me is the unilateral decision of the father on 23 December 2025 to leave the matrimonial home in India taking the child with him. He did this without giving the mother any notice whatsoever. The father, who has retained the child, initially lived at the paternal grandparents’ house, but is now living at his own property nearby. This is around one and a half to two hours’ drive from the matrimonial home.[5]The mother immediately issued a C100 application on 23 December 2025 seeking orders under section 8 of the Children Act 1989 for the child to be returned to her care and for a “lives with” order. A further C66 application was issued on 29 December 2025 seeking a wardship order and the return of the child to the mother. It is the mother’s case that she wishes to return to England, so she is seeking orders for the summary return to England of the child. By an order of Theis J dated 25 March 2026 the mother’s applications were listed for a hearing to consider both the issue of jurisdiction and if jurisdiction was established what, if any, substantive orders should be made. The mother has also issued a further application for a Hemain injunction to restrain the progress of the Indian divorce proceedings brought by the father, and this too has been listed before me.[6]The mother is represented by Ms Katy Chokowry of counsel and the father by Ms Mehvish Chaudhry of counsel. I am grateful to them both for their written and oral submissions.

Jurisdiction Arguments – A Summary

[7]The case raises a number of jurisdictional issues, which I will need to determine. On behalf of the mother, Ms Chokowry’s case is that I am able to exercise jurisdiction in relation to the child:(1) On the basis that he remains habitually resident in England and Wales;(2) Alternatively, on the basis that divorce proceedings between the parents are ongoing in England and Wales;(3) Alternatively, on the basis of the child’s British nationality. For the father, Ms Chaudhry contends that the Court does not have jurisdiction under Ms Chokowry’s grounds (1) and (2). Alternatively, she argues that if the Court does have jurisdiction under either of those grounds it should not exercise it. She accepts that the Court would retain a limited jurisdiction to make certain orders on the basis of the child’s British nationality, but again argues that this is not an appropriate case for that jurisdiction to be exercised.[8]Before turning to address these jurisdictional issues, I will set out the factual background to this case in more detail.

The Evidence

[9]I heard oral evidence on matters of fact from both parents. I also heard oral evidence from two experts; from Mr Ranjit Malhotra, an experienced Advocate qualified in India who gave evidence on various relevant matters of Indian law; and from Ms Blossom Francis an Independent Social Worker who is based in England.[10]In terms of the parents’ evidence, I have largely been able to accept the mother’s account of events, although there a number of disputed factual issues which I do not have to decide and where I consider that I do not have the material to make a determination between the parents’ respective accounts. By contrast there were a number of matters, where I consider the father to have been either misleading or actively seeking to minimise the effects and consequences of his actions. As I set out below, I consider that in several respects the father’s actions in this case have been harmful to the welfare of AH, and that he has acted on occasions as he sees fit, without any regard for the welfare of his son or the effect that he is having on the mother.[11]As I have already mentioned, the child was born in the UK in 2019 and until November 2023 both parents and the child were living here, although the father asserts that there was a period between 2017 and the mother becoming pregnant in 2019 when the mother was working in India and the parties were considering a permanent move there.[12]The parents own two properties in England, one of which they lived in and the other of which was rented out. The mother had worked full time until AH was born. Following his birth she took two years maternity leave. However, in November 2021 she began working on a part-time basis for an Indian company and she has remained in the employment of various companies within this group ever since.[13]Initially, she was able to work from home in the UK, although her role involved a certain amount of international travel, including annual trips to India of around 6 weeks duration each year. On the occasion of these trips in 2022 and 2023 the whole family (both parents and AH) travelled. In 2023 the father obtained a job in the Middle East which lasted for about four and half months. During this time the mother and child remained in England, although they visited the father for a period of around 18 days.[14]In late 2023 the mother agreed to take up a full time role with her employer in India. Her case is that this was to be for a two year period from March 2024 to May 2026. By contrast the father argues that the family moved to India permanently in November 2023. The actual events that took place in this regard are broadly agreed; it is the interpretation that they should bear that is contentious. In essence the family travelled to India in November 2023 and the following month, the mother began a new role with her employer. However, at this stage, they still retained their home in England which had all of their possessions in it and were staying just outside Delhi with the paternal grandparents. In mid-January 2024 the family returned to their home in the UK and spent around six weeks clearing their home, packing and disposing of possessions. During this time AH was attending nursery in England. At the end of February, the family returned to India and moved into a house near Town K that was provided by the mother’s employer, and which was close by the site of the project that she was working on. Their house in England was subsequently rented out in August 2024 for an initial term of one year.[15]The family home in Town K was on a gated community owned by the mother’s employer. The family had a number of staff to assist them during this period, but both parents were clearly involved in AH’s care and the mother describes getting him ready for school, being able to spend time with AH during her working day, picking him up from school and spending time with him in the evenings. The father took AH to school. From time to time the father (who was not working) would take AH to stay with the paternal grandparents near Delhi.[16]In around April 2025 the family relocated, again for the mother’s work, to Delhi. Again, they lived in a property with staff which was provided by the mother’s employer. The mother describes a similar set of childcare arrangements as had applied in Town K, with the mother waking AH in the morning, the father getting him ready for school and dropping him there and picking him up afterwards. The mother, who was working during the day, would see AH in the evenings. At weekends both parents would do activities with the child, such as taking him to see films, to shopping malls or play areas[17]In around mid-2025 the parties’ relationship deteriorated. The father has accused the mother of having an affair with a work colleague of hers, G, which the mother denies. In support of his allegations, the father has exhibited a large number of Signal messages which he asserts were sent between the mother and G. For her part, the mother denies sending these messages and alleges that they have been fabricated by the father. On the second day of the hearing the mother sought to introduce an additional witness statement exhibiting over 100 pages of what the mother says are genuine WhatsApp messages between her and G. Given the very late production of these messages and the fact that Ms Chaudhry would have had no time to consider them with her client, I declined to admit this statement. However, in the circumstances, and given the highly unsatisfactory state of the evidence on this topic I do not consider that it is either necessary or possible for me to make any findings in respect of the father’s allegations that the wife has had an affair with G, and I decline to do so.[18]In any event, whatever the truth of the father’s allegations, the parties’ relationship had reached the point where between August and October 2025 they were engaged in pre divorce litigation mediation in India. No agreement was reached in this process. Notwithstanding this, they attempted a reconciliation and were still both living in the property provided by the mother’s employer with AH.[19]The mother consulted English solicitors in respect of a divorce and on 11 December 2025 Clarendon Law, the mother’s solicitors, wrote to the father indicating that they had been instructed to issue divorce proceedings in this jurisdiction making use of the “no fault” basis for divorce under English law. On 17 December 2025 DMH Stallard emailed the mother’s solicitors to acknowledge receipt of the letter of 11 December and to indicate that they had arranged to meet with the father and that either they or he would provide a substantive response shortly. In the meantime, they asked the mother’s solicitors to refrain from taking any further action until the father had had time to obtain legal advice. Following a further exchange of emails, the father’s solicitors indicated that they would be in a position to respond by 23 December, although in fact the mother filed her proceedings via the HMCTS Portal on 22 December. They were ultimately issued by the Court on 31 December 2026.[20]At 5.54pm on 23 December 2025, the father’s solicitors sent a substantive response to the mother’s solicitors contending that the English court did not have jurisdiction to deal with matrimonial proceedings between the parties. That letter also informed the mother that the father had the previous day filed his own divorce petition in India. This was the first that the mother knew of the father’s divorce proceedings and she has, in my view with justification, complained that the father acted in bad faith by issuing these Indian proceedings, whilst his English solicitors were asking the mother’s English lawyers to hold off issuing divorce proceedings here.[21]On the same day, the father, without giving any notice to the mother, unilaterally left the matrimonial home, taking the child with him. Whilst the mother was at work, the father asked one of the maids to take AH out. He then used this as an opportunity to pack and take various things for him and the child. He collected the child from the maid and then left. The mother had no idea where the father or child had gone, and the father accepts that he did not tell her where he was going. Despite efforts by the father to try to place these events in a positive light in his oral evidence, I am satisfied that this was essentially a de facto abduction by the father of the child without the consent of the mother. Later that evening, the father spoke to the mother and told him that he and the child were at his parents’ home in just outside Delhi.[22]However, the father did not permit the mother to speak to AH, either that day or the next, and attempts by the mother to see AH at the paternal grandparent’s house were unsuccessful. There is a dispute between the parents as to how much contact the mother was able to have with AH over the next few days. The father says that there was a lengthy video call on Christmas Day, whilst the mother’s case is that she was only able to have short calls starting some days later in which AH was visibly traumatised and scared, begging her to come and see him and telling her he wanted to come home.[23]The mother reported the child’s abduction to the Police in India, who sought to do a health and welfare check on him and made repeated attempts to contact the father. By this stage, the father and his parents had taken the child on holiday (again without informing the mother) and there was no one at the paternal grandparents’ house. They had also turned their mobile phones off, so they were uncontactable. I consider this to be deliberate and cynical conduct to prevent the mother, who was clearly extremely worried for the safety of her child, from having contact with him. The father was ordered to present the child before the court in Delhi and eventually did so on 8 January 2026. The child was seen by a judge who was satisfied that he was well.[24]There are allegations and counter-allegations as to what took place at court on 8 January 2026, with the father alleging that an individual acting on behalf of G attended court and videoed the father and his legal team outside the court building. The man was challenged by the Police and the videos were deleted. The father uses this incident in support of a contention that AH is at risk if he is exposed to contact with G. The mother explains that the man was attending to record service of the mother’s English divorce proceedings on the father, an explanation that I accept. The mother also contends that the father only let her spend a brief time with her son (whom she had not seen in person since 23 December) before snatching him away from her and leaving the court building.[25]AH now lives with his father in a property near to the grandparents’ home. The father, without consulting the mother, has withdrawn AH from his previous school and enrolled him in a school closer to the paternal grandparents’ house. The father has explained that he has had to do this because of AH’s “safety” recounting an incident in September 2025 when an individual (whom the father implies is linked to G) turned up at AH’s school office. The mother explains that this was an individual who had been sent by the mother to make a payment of AH’s school fees on her behalf; he attended only the school office, and no safeguarding concerns arise. Again, I accept her evidence on this point.[26]Additionally, the father justifies this unilateral change of school on practical grounds. Although both the matrimonial home and the paternal grandparents’ home are in the Delhi area, they are not particularly close, and traffic congestion means that a one way journey between the two takes something between an hour and half and two hours. Thus were the child to continue to have attended his previous school, he would have spent much of the day travelling. His new school is around 15 minutes’ drive from his current home. This further justification for the change in schools has the benefit of credibility (unlike the one that I have recounted in the previous paragraph). However, it also underlines the disruption that the father’s unilateral actions have wrought in AH’s life.[27]The mother’s applications have come before this court on four previous occasions. At every single one of those hearings, the judge dealing with the case, whilst not making any form of interim child arrangements order (because of the father’s contest to the court’s jurisdiction), has included recitals about contact, with Theis J in her order of 25 March 2026 strongly encouraging arrangements to be made for AH to spend time with his mother over each weekend in the matrimonial home.[28]Sadly, contact between the mother and AH has effectively been wholly controlled by the father since December last year. The mother has not been permitted by the father to have contact with AH either at the paternal grandfather’s house or at the matrimonial property. Instead contact sessions take place once during the week after school until 8pm or 9pm, and once at the weekend on neutral territory, such as a shopping mall with the father providing supervision. Additionally, the mother has a number of video calls with the child each day. The father complains that there are times when the mother is travelling for work and only lets him know that she will not be able to make a contact session at the last minute.[29]The basis for the restrictions that the father has sought to place on the mother’s contact with AH arise from his assertion that G is the mother’s new partner and that he is a dangerous individual and if given the opportunity, he or his associates will effectively turn the tables and withhold AH from the father. It was also suggested in the father’s oral evidence that G had a brother who had been convicted of a serious crime in the Middle East, although this is not mentioned in his witness statement. Indeed, beyond bare assertions about G, there is really nothing in the father’s evidence to suggest that he would pose a danger to AH, and I repeat that the mother denies that she is in any form of relationship with him in any event. G is a work colleague of the mother’s whom the father has known for some time. He is, however, a Muslim and the mother is concerned that the father is seeking to use cultural sensitivities between Muslim and Hindu communities in India to create a prejudicial impression rather than raise any genuine safeguarding issue On the evidence that is before me it seems to me unlikely that the father has a genuine belief that G somehow poses a danger to the child. I consider that the father is wielding this allegation for tactical reasons, and as a means of exerting control over the mother, rather than on the basis of any genuine belief in its veracity.[30]I sought to explore with counsel whether it would be possible for an agreement to be reached for AH to have unsupervised time with the mother on the basis that she would not introduce him to G (or indeed other work colleagues), but both sides appeared to have concerns over such a proposal; the mother because she is anxious not to agree to anything which could be misrepresented by the father before the Indian courts as an acknowledgment that she has had a relationship with G; the father because he considers the mother is under G’s control.[31]The initial tenancy of the family home in England ended in August 2025. A new two year fixed term tenancy of the property was granted by estate agents purporting to act on behalf of both parents on 1 November 2025. The mother did not become aware of this reletting until January of this year. Although she had seen an agent’s board outside the property on a visit to the UK in September 2025, she had understood from the father that they were going to be entering into short term Airbnb lets to obtain income to pay the mortgage on the property. However, her case is that they were intending to return to the UK once her employment contract ended in May 2026. I accept the mother’s evidence that the move to India was intended to have been for the duration of her employment there, rather than a permanent relocation. Had it been the latter I consider that the family would have been likely to have taken more steps to tie up their lives in England, such as selling their properties.[32]As I have already detailed, the mother has issued proceedings in relation to AH under both the Children Act 1989 and the inherent jurisdiction before this court. There are no existing proceedings relating to AH before the Indian courts. The mother’s divorce proceedings were issued by the Family Court on 31 December 2026 and the father’s Indian divorce proceedings were issued by that court on 21 January 2026. In the English proceedings, the father is contesting jurisdiction and has raised issues of forum conveniens. A directions hearing in the Family Court took place on 27 April 2026. On that occasion directions were given for a hearing on the first open date after 27 July 2026 to determine the issues of jurisdiction and forum. Within the Indian proceedings, the mother is also contesting jurisdiction and forum and a hearing took place on 28 April 2026. Although I have not seen the order made on that occasion, I understand that those proceedings have been adjourned until 24 August 2026. The Expert Evidence Mr Malhotra

The Expert Evidence

[33]I heard expert evidence on Indian Law from Mr Ranjit Malhotra, an Indian Advocate specialising in family law, who produced a detailed report and was also cross-examined by both counsel. I take the following from Mr Malhotra’s evidence:(1) India is not a signatory to the 1996 Hague Convention.(2) The Indian courts will exercise jurisdiction over a child if they “ordinarily reside” within the territorial limits of the authority of that particular court. This concept of ordinary residence is distinct from the international concept of habitual residence.(3) There are various routes whereby a dispute over the care of a child could be brought before the Indian courts, specificallya. By a petition under the Guardianship of Wards Act 1890;b. By an application under section 26 of the Hindu Marriage Act 1955 (within ongoing divorce proceedings); orc. By a writ of habeas corpus under the inherent jurisdiction of the High Court.(4) It is possible for a party to make an application relating to child welfare under section 26 of the Hindu Marriage Act 1955 whilst expressly reserving their position on the court’s jurisdiction to deal with the divorce.(5) The OCI status of the parents will not impact on their standing to invoke the jurisdiction of the Indian court in child welfare matters.(6) Urgent applications can be made and granted. However, timescales for the full determination of a case may vary widely and be difficult to predict, particularly if there are appeals. Mr Malhotra gave the example of a case of some complexity that took around three years from the first instance decision to a final order from the Supreme Court of India.(7) When considering such proceedings, the welfare of a child is the paramount consideration. Whilst the factors to be considered are not identical to the welfare checklist found at section 1(3) of the Children Act 1989, they include: a. Best interests of the child; b. The child’s emotional and psychological welfare; c. Shared parenting;d. Disparity of financial support, particularly when one parent is solely supporting the child;e. Parental responsibility;f. Relationships outside the home and the effect these have on children;g. The importance of preventing psychological harm to the child by maintaining balanced and healthy relationships with both parents.(8) Under the Hindu Minority and Guardianship Act 1956 there is a statutory preference for awarding custody of a child under the age of five to the mother, although Indian courts may also be more generally inclined to grant custody of an older child to the mother on the basis that they may be in a better position to look after him. If the child is old enough to express their views then these may be taken into account.(9) In making a welfare assessment of a child the court may obtain expert reports.(10) An order of a foreign court relating to a child ordinarily resident in India could not be directly recognised or enforced in India. Rather a fresh application would have to be brought in India in relation to the child. The foreign order would simply be one factor that the Indian court would take into account in determining where the welfare of the child lay.(11) The principles of forum non conveniens and comity have no place in wardship cases in India and all such cases are to be determined on their merits taking into account the welfare of the child.(12) The Indian courts can and do take domestic violence (including conduct that occurred outside India) into account when determining matters of child welfare.[34]Although Mr Malhotra was cross-examined by both counsel, he was extremely reluctant to answer questions beyond those that had been posed to him in his report. In particular although pressed by Ms Chaudhry on the point he declined to provide an answer as to how long it might take for an application to have its first substantive hearing before a judge, although he did not endorse the views expressed by the father’s Indian lawyers that an application could be listed within 1-3 days of filing, explaining that any such hearing would be a first consideration by a judge and not an effective inter partes hearing.[35]Ms Chokowry cross-examined Mr Malhotra as to the approach that an Indian court would take to allegations of adultery (the father’s petition in the Indian proceedings alleges that the mother has committed adultery with G, who is a Muslim). Although Mr Malhotra did not wish to get drawn into the specific facts of this case, he explained that the court looked at circumstances in the round, so that allegations by the father that the mother had committed adultery or that AH might be exposed to a different religion could be taken into account by the Court. Nonetheless, he emphasised that ultimately it was the welfare of the child that was paramount in all welfare cases.

Ms Francis

[36]I also heard from Ms Blossom Francis, a UK based ISW. Her report suffered from the fact that it had been compiled under tight time constraints, and she had only been able to have remote contact with the parties. She was able to speak to both parents by video-calls and also spoke to AH once, again by video for about 30 minutes. She was not able to speak to AH’s school. Her report stated that it was not possible for her to observe AH at the mother’s house for a contact session, although Ms Chokowry put to her that this was a result of the conditions that had been placed on contact by the father.[37]Ms Francis reports that AH is a confident and articulate 6 year old child, who spoke positively about school and his friendships both at school and in the neighbourhood where he is living. He spoke fondly about his cousin and family members. He remembered some things about living in the UK. He told Ms Francis that he would want to see his mother on the other days of the week when he does not currently see her. She reports that both parents have spoken positively about AH and have a lot of love and affection for him. Her conclusions include the following:
“[AH] is reportedly settled in the current school and he has been in India since November 2024 (sic) which is likely to have provided him with some stability in a different country. [AH] continues to have contact with his extended family members which is likely to be positive and bring further stability. [AH] has a narrative that his mother lives away as she is working a lot. It is not likely to be in [AH’s] best interests to expose him to further changes in terms of his education and living arrangements. … It would be in [AH’s] best interests to see his parents working and communicating well together. It is difficult for me to currently comment on how unsupervised contact would work but it would benefit [AH] having unsupervised contact with his mother to normalise the circumstances as much as possible for him. The parents can sign a working agreement around unsupervised contact”
[38]Having heard Ms Francis’s oral evidence I was left with the impression that she viewed the current situation very much from the father’s perspective and that her conclusion that any further changes to the status quo in respect of the child’s education or living arrangements would be unlikely to be in his best interests did not adequately take into account the fact that those arrangements have arisen as a result of the father’s unilateral decisions to remove AH from the shared matrimonial home and enrol him at a new school.

The Law

[39]The basis of the Court’s jurisdiction to make orders in respect of children is to be found in section 2 of the Family Law Act 1986. The relevant subsections in this case are subsections 2(1) and (3). These provide as follows (so far as relevant to this case):
“2(1) A court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless:- (a) It has jurisdiction under the Hague Convention, or (b) The Hague Convention does not apply but – (i) The question of making the order arises in or connection with matrimonial proceedings or civil partnership proceedings and the condition in section 2A of this Act is satisfied; … 2(3) A court in England and Wales shall not make a section 1(1)(d) order unless- (a) it has jurisdiction under the Hague Convention…” (a) It has jurisdiction under the Hague Convention, or (b) The Hague Convention does not apply but – (i) The question of making the order arises in or connection with matrimonial proceedings or civil partnership proceedings and the condition in section 2A of this Act is satisfied; (a) it has jurisdiction under the Hague Convention…”
[40]For the purposes of section 2, a section 1(1)(a) order is “a section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order”, and a section 1(1)(d) order is “an order made by a court in England and Wales in exercise of the inherent jurisdiction of the High Court with respect to children(i) so far as it gives care of a child to any person or provides for contact with, or the education of a child; but(ii) excluding an order varying or revoking such an order.”[41]The condition in section 2A of the Family Law Act 1986 is (so far as relevant to this case):
“…that the proceedings are proceedings in respect of the marriage or civil partnership of the child concerned and (a) the proceedings- (i) are proceedings for divorce or nullity of marriage or dissolution or annulment of a civil partnership, and (ii) are continuing.” (i) are proceedings for divorce or nullity of marriage or dissolution or annulment of a civil partnership, and (ii) are continuing.”
[42]The effect of these provisions (insofar as they are relevant to this case) is as follows:(1) Under section 2(1)(a) FLA 1986 the Court has jurisdiction to make orders under section 8 of the Children Act 1989 if it has jurisdiction under the Hague Convention. It will have such jurisdiction if the child is habitually resident in England and Wales. Here, Ms Chokowry contends that the child is indeed habitually resident here; Ms Chaudhry argues that he is not.(2) In the alternative, if the Hague Convention does not apply (that is to say the Convention does not apply to give jurisdiction to England or Wales or any other Contracting State (see Re S (Children: Parentage and Jurisdiction) [2023] EWCA Civ 897 per Moylan LJ at [104])) the court will nevertheless have jurisdiction under section 2(1)(b)(i) FLA 1986 to make orders under section 8 of the Children Act 1989 in relation to a child if: (a) The question of making the order arises in connection with matrimonial proceedings; and (b) Those proceedings are for divorce or nullity of marriage; and (c) Those proceedings are continuing. Ms Chokowry contends that these conditions are met. Again, Ms Chaudhry argues they are not.(3) In the alternative, pursuant to section 2(3) FLA 1986 the court may make orders under its inherent jurisdiction giving care of a child to a person or providing for contact with or the education of that child only if the Convention applies (which will require the child to be habitually resident in England and Wales). The arguments here, are therefore the same as under (1) above.(4) Additionally, the Court has a limited power to make orders under its inherent jurisdiction that do not fall within section 1(1)(d) orders in relation to a child who is a British national who is neither habitually resident nor present in England and Wales, what is commonly referred to as the parens patriae jurisdiction. Ms Chaudhry argues that the basis upon which this limited jurisdiction can be exercised is not met in this case.[43]I will examine the various potential grounds of jurisdiction in turn.

Habitual Residence

[44]The law on habitual residence is well established and both parties both referred me to the most recent summary of the relevant principles that is to be found in the judgment of Moylan LJ in Re F (A Child) (Habitual Residence) [2025] EWCA Civ 911 at [58]: “(a) "The identification of a child's habitual residence is overarchingly a question of fact": Re B, at [46]. It is "focussed on the situation of the child": Re A, at 54(v) and Re R, at [17]. It is an issue of fact which requires the court to undertake a sufficient global analysis of all the relevant factors. There is an open-ended, not a closed, list of potentially relevant factors; (b) As set out, for example, in Proceedings brought by HR, at [41]: "In addition to the physical presence of the child in the territory of a [member] state, other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent"; (c) Factors of relevance, as set out in Proceedings brought by HR, at [43], and reflected in many other domestic cases, include: "the duration, regularity, conditions and reasons for the child's stay in the territory of the different [member] states concerned, the place and conditions of the child's attendance at school, and the family and social relationships of the child in those member states"; (d) The intentions of the parents are also a relevant factor and there is no "rule" that one parent cannot unilaterally change the habitual residence of a child: Re R, at [17]; (e) As set out in Re R, at [16], it is "the stability of the residence that is important, not whether it is of a permanent character" but there "is no requirement that the child should have been resident in the country in question for a particular period of time" because habitual residence can be acquired quickly: e.g. A v A, at [44]; (f) The "degree of integration of the child into a social and family environment in the country in question" is relevant, Re R, at [17]. It is clear that "full integration" is not required, "Re B (SC)", at [39], but only a degree sufficient to support the conclusion, when added to the other relevant factors, that the child is habitually resident in the relevant state; (g) The relevant factors will reflect the age of the child (see Mercredi v Chaffe [2012] Fam 22, at [53]-[55]; A v A, at [54(vi], and Re LC, at [35]). Accordingly, "The social and family environment of an infant or young child is shared with those (whether parents or others) on whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned": Re A, at 54(vi); (h) The court is considering the connections between the child and the country or countries concerned: A v A, at [80(ii)]; Re B (SC), at [42]; and Proceedings brought by HR, at [43]. This is a comparative analysis as referred to, for example, in Re M, at [60]; Re B (EWCA), at [86]; and Re A, at [46]. As observed by Black LJ in Re J, I repeat: "What is important is that the judge demonstrates sufficiently that he or she has had in mind the factors in the old and new lives of the child, and the family, which might have a bearing on this particular child's habitual residence." An example of this is seen in Re B (SC) in which Lord Wilson, at [49]-[50], referred to the factors which pointed to the child having "achieved the requisite degree of disengagement from her English environment" and those which pointed to the child having "achieved the requisite degree of integration in the environment in Pakistan". "What is important is that the judge demonstrates sufficiently that he or she has had in mind the factors in the old and new lives of the child, and the family, which might have a bearing on this particular child's habitual residence."[45]Ms Chokowry argues that AH remains habitually resident in England and Wales, pointing to a number of factors in support of this contention:(1) The parties have made their lives in England for over 20 years, jointly foregoing their Indian Citizenship and acquiring British nationality instead.(2) AH was born in England, attended nursery here and had lived all of his life in England until the parties travelled to India for the mother’s work in late 2023 / early 2024.(3) The parties had a common intention to return to the UK. The decision to move temporarily to India was linked to the mother’s employment and their joint reliance upon her income.(4) The fact that the parties are not now returning to the UK on the conclusion of the mother’s current contract is a consequence of the father’s unilateral actions in renting out their family home here and removing the child from his home and school in India. Ms Chokowry points me to A v A [2013] UKSC 60 as an example of a case where the court concluded that the actions of a father in depriving children of the ability to return to England led to them not losing their habitual residence here while held overseas.(5) Since December 2025, the child has undergone a period of upheaval in his life, being deprived of his mother’s care and uprooted from his familiar home and school environment. AH has therefore lacked stability in his life through the father’s actions.[46]Despite Ms Chokowry’s valiant attempts on her client’s behalf, I find that the child is habitually resident in India and was habitually resident there as at the date of the issue of these proceedings in December 2025.[47]The parents agreed to move to India for the mother’s work in late 2023. Notwithstanding the disputes between the parents as to the precise date upon which that move took place or when the mother signed her employment contract, it is clear that they began their transition from life in England to India in late 2023 and completed it by 29 February 2024. In such circumstance I do not find it helpful to try to put a specific date on when the move took place. Rather, I consider that there was a shift in the family’s centre of interests from England to India which took place over a period of around four months, but which was completed by the end of February 2024.[48]However, even on the mother’s case AH has been living in India since March 2024 and so had been in that jurisdiction for 21 months as at the date that the application before this court was issued. I have no doubt that during that period he attained the necessary degree of integration in India so as to become habitually resident there. His time in India has not been temporary or intermittent. Rather, he has clearly become integrated into life in that country and his life there has been a stable one (at least until December 2025). The family moved as a unit to India, bringing virtually all of their possessions with them. Between March 2024 and December 2025, he lived in India in a family home with both of his parents. It was clearly a loving and comfortable environment. Since the events of December 2025 he has continued to live in that country, albeit now with his father and paternal grandparents. The wider maternal and paternal families are also in India there and he has spent time, in particular, with the latter. Since March 2024, he has been attending school in India and has built up friendships there. Whilst I am satisfied that there was, at the time that the parents left the UK, a joint intention to return in due course, there was equally a joint intention on the part of the parents that the family would make its home in India for the duration of the mother’s employment contract.[49]I do not consider that this case is comparable with that of A v A where the children were stranded in Pakistan by the actions of the father in taking control of the children’s passports. The fact that the father has let out the family home in the UK without the mother’s knowledge is a very different situation. In any event, AH had already been living in India for 20 months (on the mother’s case) before the property was let out and for over 21 months before the father removed him from the family home, and I am satisfied that he had already become habitually resident in India prior to those events occurring.[50]I therefore conclude that the Hague Convention does not apply in this case and that the Court is unable to exercise jurisdiction to make a section 1(1)(a) order under section 2(1)(a) FLA 1986. It therefore also lacks jurisdiction to make a section 1(1)(d) order under section 2(3) FLA 1986.

Section 2(1)(b)(i)) FLA 1986

(b) (i)) FLA 1986

[51]I turn then to Ms Chokowry’s alternative argument that the court has jurisdiction to make section 1(1)(a) orders on the alternative basis provided for under section 2(1)(b)(i) FLA 1986. As set out above, the court may make such orders in respect of a child who is neither habitually resident nor present in England and Wales if the following three conditions are all met:(1) The question of making the order arises in connection with matrimonial proceedings; and(2) Those proceedings are for divorce or nullity of marriage; and(3) Those proceedings are continuing. Ms Chokowry’s case is that all three of those conditions are satisfied here.[52]In relation to the requirement that the making of the section 8 order arises “in connection with” matrimonial proceedings, she has taken me to two recent decisions of the Court of Appeal which have considered this issue, namely Re T (Children) (Jurisdiction: Matrimonial Proceedings) [2023] EWCA Civ 285 and Re S (Children: Parentage and Jurisdiction) [2023] EWCA Civ 897. In the former case Moylan LJ took the opportunity to restate what he had previously said in the case of Lachaux v Lachaux [2019] EWCA Civ 738; [2019] 4 WLR 86 at [187], namely that:
“The courts should take a broad view as to whether the question arises in or in connection with the other proceedings. In broad terms all that is required is that the parties to those proceedings are "the parents of the child concerned", that the proceedings are taking place or did place in England and Wales, and that one or other or both of the parents seek a section 1(1)(a) order because their marriage or civil partnership is being or has been dissolved. The reason the court can take a broad view is because this provision only applies if neither BIIa nor the 1996 Convention apply and because section 2(A(4) balances the broad scope of section 2(1)(b)(i) by giving the court power not to exercise this jurisdiction.”
[50]Section 2A(4) FLA 1986 provides:
“(4) Where a court— (a) has jurisdiction to make a section 1(1)(a) order by virtue of section 2(1)(b)(i) of this Act, but (b) considers that it would be more appropriate for Part I matters relating to the child to be determined outside England and Wales, the court may by order direct that, while the order under this subsection is in force, no section 1(1)(a) order shall be made by any court by virtue of section 2(1)(b)(i) of this Act.” (a) has jurisdiction to make a section 1(1)(a) order by virtue of section 2(1)(b)(i) of this Act, but (b) considers that it would be more appropriate for Part I matters relating to the child to be determined outside England and Wales, the court may by order direct that, while the order under this subsection is in force, no section 1(1)(a) order shall be made by any court by virtue of section 2(1)(b)(i) of this Act.”
[51]In Re T Moylan LJ specifically addressed a concern raised by Bodey J in J v U (Child Arrangements[52]Ms Chokowry argues that taking Moylan LJ’s “simple approach” the Court has jurisdiction to make a section 1(1)(a) order in relation to AH on the basis that the:(1) The parties are the parents of AH;(2) There are matrimonial proceedings taking place in England and Wales; and(3) The mother is seeking a section 1(1)(a) order in relation to the child.[53]Ms Chaudhry accepts that following the Court of Appeal decisions that I have referred to above, the broad view identified by Moylan LJ has to be taken as to the meaning of the words “in connection with” in section 2(1)(b)(i) FLA 1986. However, she still argues that the test is not met in this case as she contends that there are not presently divorce proceedings “continuing” between the parties in England and Wales. She has two strands to this argument.(1) She contends that because the father is seeking to challenge the jurisdiction of the English Court to hear the divorce proceedings, the case cannot be said to be “continuing”;(2) In the alternative she argues that the effect of the order of the District Judge on 27 April 2026 was to stay the proceedings.[54]To deal with Ms Chaudhry’s arguments, it is necessary to consider the current status of the English divorce proceedings. The order of the District Judge dated 27 April 2026 identified that the contested issues within the English divorce proceedings include:(1) Whether the courts of England and Wales have jurisdiction to deal with the dissolution of the parties’ marriage (it being the mother’s contention that such jurisdiction arises on the basis that the parties are domiciled in England and Wales); and(2) If it does have such jurisdiction, whether it should exercise it (an argument based on forum conveniens grounds). That order therefore provided for the parties to file evidence addressing those issues and for the matter to be listed for a final hearing to deal with these jurisdiction issues with a time estimate of one and a half days.[55]In that context, I do not accept Ms Chaudhry’s arguments on this issue. Section 42(2) FLA 1986 provides that:
“For the purposes of this Part proceedings in England and Wales … for divorce, nullity or judicial separation in respect of the marriage of the parents of a child shall, unless they have been dismissed, be treated as continuing until the child concerned attains the age of eighteen— … (a) in the case of proceedings for a divorce, nullity of marriage or judicial separation order, whether or not an order has been made and whether or not (in the case of a divorce or nullity of marriage order) that order has been made final.”
The statute therefore treats divorce proceedings as “continuing” unless they are dismissed without a divorce order being made. In the light of this provision, I consider that where divorce proceedings have been issued before the courts of England and Wales, they should be treated as “continuing” for the purposes of Part I of the FLA 1986 even if there is a live challenge to the jurisdiction of the court to entertain them. If the outcome of that challenge is that the court concludes that it lacks jurisdiction, then it will dismiss them with the consequence that the proceedings will cease to be “continuing” within the definition set out in section 42(2). However, unless and until the proceedings are finally dismissed (whether for want of jurisdiction or otherwise), then I consider that it is clear from section 42(2) that the proceedings are “continuing” and the court will therefore have jurisdiction to make a section 1(1)(a) order under section 2(1)(b)(i) FLA 1986 in relation to a child of the parties to that marriage.[56]This, in my view, accords with the broad approach taken to jurisdiction under section 2(1)(b)(i) FLA 1986 by the Court of Appeal in Re T; any concern that it could open up a route to the abuse the court’s jurisdiction (through the issuing of divorce proceedings in cases where jurisdiction to hear such a claim is doubtful, simply to establish jurisdiction to make a section 1(1)(a) order) can be dealt with (as Moylan LJ observed in Re T) by the exercise of the court’s power to decline to exercise its jurisdiction in such cases.[57]It therefore also follows that if the divorce proceedings are stayed, rather than being dismissed, they will still be treated as continuing for the purpose of the statute, so even if the District Judge’s order had effected a stay, this court would still have jurisdiction to make section 1(1)(a) orders in relation to AH under section 2(1)(b)(i) FLA 1986. In any event, I do not accept Ms Chaudhry’s argument that the order of the District Judge adjourning the divorce proceedings to enable the parties to file evidence on the issue of jurisdiction is to be regarded as a stay. A “stay” has a technical meaning, distinct from an adjournment; the glossary to the Family Procedure Rules 2010 describes it thus:
“A stay imposes a halt on proceedings, apart from the taking of any steps allowed by the rules or the terms of the stay. Proceedings can be continued if a stay is lifted”
. Here, the District Judge’s order providing for the filing of evidence and listing the matter for a further hearing has plainly not effected a stay.[58]I therefore find that the divorce proceedings brought by the mother are “continuing” for the purposes of Part I FLA 1986 and that the Court therefore has jurisdiction to make section 1(1)(a) orders in relation to AH under section 2(1)(b)(i) FLA 1986.[59]Although I have found that the Court has jurisdiction to make such orders, I need to consider whether it is appropriate for me to exercise it in this case. However, before doing so I will consider the third ground of jurisdiction relied upon by Ms Chokowry.

The Parens Patriae jurisdiction

[60]The final ground of Ms Chokowry’s argument on jurisdiction relates to the parens patriae jurisdiction which can be exercised by the Court in respect of British Citizens where no other jurisdictional basis for making an order is available. This jurisdiction is circumscribed both in its scope and in the circumstances where it may be used. As I have already set out, section 2(3) FLA 1986 prevents the court from making orders under the inherent jurisdiction that give care of the child to any person or provide for contact with, or the education of a child unless other jurisdictional requirements are met (essentially that the child is habitually resident or present in England and Wales). For the reasons that I have already given, these requirements are not met here, so the court cannot use the inherent jurisdiction to make a section 1(1)(d) order in this case.[61]It would potentially be open to the court to make other orders under the inherent jurisdiction that do not fall within the scope of section 1(1)(d) FLA 1986, such as a “bare” return order that did not contain any provisions concerning care, contact or education. That said, the circumstances under which it is appropriate for the Court to make such an order are limited. Moylan LJ described the relevant test thus in Re M (Exercise of Inherent Jurisdiction) [2020] EWCA Civ 922, [2021] Fam 163 at [105]:
“...following the obiter observations in In re B, whilst the exercise of the inherent jurisdiction when the child is habitually resident outside the United Kingdom is not confined to the 'dire and exceptional' or the 'very extreme end of the spectrum', there must be circumstances which are sufficiently compelling to require or make it necessary that the court should exercise its protective jurisdiction. If the circumstances are sufficiently compelling then the exercise of the jurisdiction can be justified as being required or necessary.”

Forum Conveniens

[62]As I have already explained, the court has a statutory power under section 2A(4) FLA 1986 to stay proceedings which it has jurisdiction to entertain under section 2(1)(b)(i) FLA 1986 if it considers “that it would be more appropriate” for the matters relating to the child to be determined outside England and Wales. Additionally, the Court has power to stay proceedings on forum conveniens grounds. It was not suggested by either counsel that there is any real difference between the test to be applied when exercising either of these two powers and I note that in Lubbe v Cape Plc [2000] 1 WLR 1545 at 1554 Lord Bingham of Cornhill explained that the court will ordinarily grant a stay on forum conveniens grounds if it concludes that there is “some other available forum which prima facie is more appropriate for the trial of the action”. In the absence of any contrary argument, I will proceed on the basis that the same principles are applicable to both.[63]The approach that a family court needs to take when deciding whether to stay proceedings on forum conveniens grounds was explained by Williams J in V v M (A Child) (Stranding: Forum Conveniens: Anti-Suit Injunction) [2019] EWHC 466 (Fam); [2019] 4 WLR 38. At [35] he held: “Drawing those threads together the approach that the court needs to take in a forum conveniens situation is it seems to me as follows; i) the burden is upon the applicant to establish that a stay of the English proceedings is appropriate; ii) the applicant must show not only that England is not the natural or appropriate forum but also that the other country is clearly the more appropriate forum; iii) in assessing the appropriateness of each forum, the court must discern the forum with which the case has the more real and substantial connection in terms of convenience, expense and availability of witnesses. In evaluating this limb the following will be relevant; a) the desirability of deciding questions as to a child's future upbringing in the state of his habitual residence and the child's and parties' connections with the competing forums in particular the jurisdictional foundation; b) the relative ability of each forum to determine the issues including the availability of investigating and reporting systems. In practice judges will be reluctant to assume that facilities for a fair trial are not available in the court of another jurisdiction but this may have to give way to the evidence in any particular case; c) the availability of witnesses and the convenience and expense to the parties of attending and participating in the hearing; d) the availability of legal representation; e) any earlier agreement as to where disputes should be litigated; f) the stage any proceedings have reached in either jurisdiction and the likely date of the substantive hearing; g) principles of international comity, insofar as they are relevant to the particular situation in the case in question. However public interest or public policy considerations not related to the private interests of the parties and the ends of justice in the particular case have no bearing on the decision which the court has to make; h) it has also been held that it is relevant to consider the prospects of success of the applications. iv) If the court were to conclude that the other forum was clearly more appropriate, it should grant a stay unless other more potent factors were to drive the opposite result; and v) In the exercise to be conducted above the welfare of the child is an important (possibly primary), but not a paramount, consideration.” a) the desirability of deciding questions as to a child's future upbringing in the state of his habitual residence and the child's and parties' connections with the competing forums in particular the jurisdictional foundation; b) the relative ability of each forum to determine the issues including the availability of investigating and reporting systems. In practice judges will be reluctant to assume that facilities for a fair trial are not available in the court of another jurisdiction but this may have to give way to the evidence in any particular case; c) the availability of witnesses and the convenience and expense to the parties of attending and participating in the hearing; d) the availability of legal representation; e) any earlier agreement as to where disputes should be litigated; f) the stage any proceedings have reached in either jurisdiction and the likely date of the substantive hearing; g) principles of international comity, insofar as they are relevant to the particular situation in the case in question. However public interest or public policy considerations not related to the private interests of the parties and the ends of justice in the particular case have no bearing on the decision which the court has to make; h) it has also been held that it is relevant to consider the prospects of success of the applications.

Discussion

[64]I have therefore concluded that the court has jurisdiction to make orders in this case; either a section 1(1)(a) order by virtue of section 2(1)(b)(i) FLA 1986 or a bare return order by virtue of AH’s British Citizenship under the inherent jurisdiction. However, I must now consider whether this is an appropriate case in which to exercise that jurisdiction. I begin by considering the various factors identified by Williams J in V v M (above).[65]Here, I have found that AH is habitually resident in India. He is currently present in that jurisdiction, as are both of his parents and he has been there now for more than two years, where he is now attending school. He and his parents are all British Citizens but they each also have OCI status giving them a wide range of rights in India. Although the family owns property in England, that is currently rented out and not immediately available for occupation. Both the maternal and paternal families are also resident in India. Now that the parties’ marriage has broken down, the father is clearly intending to stay in India for the foreseeable future. The mother’s current employment contract is now concluding, and she has expressed a wish to return to England (although I understand that she is likely to remain in India for the time being if I do not make an immediate return). However, she has neither a job nor accommodation immediately available to her in England, although I consider that she is someone capable of finding employment in either jurisdiction.[66]There is a developed legal system in India which is capable of determining issues of child arrangements and as Mr Malhotra has explained, the courts of that jurisdiction adopt the welfare of the child as the paramount consideration in such cases. The Indian court may order the preparation of reports in relation to the child, in the same way that an English court can, and will hear from the child in cases where they are old enough to contribute. Matters are however not on all fours with England, and I accept Mr Malhotra’s evidence that the Indian court may also take into account any findings that it may make as to the father’s allegations of adultery on behalf of the mother within the divorce proceedings as part of the wider background circumstances under consideration. In that regard I note and record the father’s answers on this topic in cross-examination. Asked by Ms Chokowry whether he was seeking to have the mother declared as an unfit mother in India, he denied this and said that “the thought had never crossed [his] mind” and that he had no intention of using the allegation of adultery within his divorce petition to keep the mother away from AH.[67]Both parents, and indeed any other relevant witnesses, are in India. The ability of a witness to give evidence by video-link means that the geographical locations of witnesses is now a less important factor than it once was. Nonetheless, there is an obvious benefit for a court to hear from key witnesses in person rather than receiving their evidence via video-link. This observation is not confined to evidence of fact. The shortcomings of Ms Francis’s report in this case arose not just because of the time pressures under which it was prepared, but also in consequence of the fact that her discussions with both parents and with AH were all conducted remotely through video-link. There would clearly be advantages to having any further expert reports prepared by an expert who is in the same country as the child.[68]Legal representation is available to both parents in India and England; they have each already instructed sets of lawyers in both jurisdictions.[69]This is not a case where there has been any prior agreement as to where the dispute should be litigated.[70]There are no child proceedings currently on foot in India, so matters are ahead in this jurisdiction. It is difficult to predict how long Indian proceedings may take. I am satisfied that the Indian courts would be able to make urgent or interim orders relatively quickly; a matter of days or a short number of weeks, but I am unclear how long it would take for a substantive first instance decision to be obtained. I accept that if there are appeals all the way to the Supreme Court of India this could take significantly longer – Mr Malhotra gave an example of a case where the appellate proceedings took three years. However, I do not consider that I should begin by assuming that the case will need to go through a significant number of appeals. Although I suspect that English proceedings would be concluded more quickly if all parties were to accept and act upon the orders of the English court, this is contingent upon the parties following the court’s orders.[71]As Mr Malhotra has explained, there is no mechanism to obtain recognition and enforcement of an English order in India. If such an order were to be made, then fresh proceedings would be required in India to give effect to it. Within those proceedings, the Indian Court would itself conduct an assessment of the child’s best interests, in which the order of the English court would be merely one factor to be taken into account. I am thus concerned that any order that I make could not be enforced in India and should one party or the other fail to obey it, there is relatively little that could be done, save to initiate a fresh set of proceedings in India in which the Indian court will conduct its own separate assessment of the child’s welfare in any event. Ms Chokowry reminds me that both parents have property in this country to which the court could apply sanctions should orders be disobeyed.[72]Taking all of these matters into account, I have concluded that I should not exercise such jurisdiction as I have in this case. First, I am wholly satisfied that this is not a case where an immediate summary return should be ordered (whether under section 8 of the Children Act 1989, or the parens patriae jurisdiction). This is not a case where a child has been wrongfully removed from England and Wales, requiring the court to order an immediate return. Rather, this is a case where the parties have embarked on mutually agreed move to another jurisdiction for a defined period of time, sufficient for the child to become habitually resident in that jurisdiction. During their stay in that other state the parties’ relationship has broken down and they have separated, and the parties now need to deal with the consequences that flow from that in relation to their parenting of AH.[73]I accept that when the parents moved to India, there was a joint intention that this was not a permanent relocation and that they would return to the UK at the end of the mother’s period of employment. However, this was clearly an intention predicated on the joint belief that they would remain together, which is no longer the case. I do not consider that this original intention is sufficient, as the mother now argues, to require or make it necessary for the court to order an immediate summary return, particularly in circumstances where:(1) All parties are currently living in India;(2) There is no accommodation immediately available for the mother and AH should they return to the UK;(3) The father intends to remain in India; and(4) (As Ms Francis identifies in her report) AH has been subjected to considerable instability over the past few months. I therefore decline to make an immediate order for AH’s summary return to this jurisdiction.[74]Instead, I am satisfied that this is a case where a full welfare investigation is required, in the course of which the various options for AH’s living arrangements and contact with each parent can be properly considered, including the option of a relocation by the mother and AH to England. The issue is whether that is an investigation that should be carried out by the courts in England or in India. I have considered carefully all of the factors that I have set out above and have concluded that this is an exercise that the courts of India are clearly best placed to undertake and that I should therefore stay these proceedings.[75]Factors that have carried weight in this conclusion include:(1) The fact that I have found AH to be habitually resident in India;(2) The fact all the parties are currently in India;(3) The fact that the Indian courts also apply a test in which the welfare of the child is paramount;(4) The fact that it will be easier for an ISW or other expert instructed by the Indian courts to carry out investigations and meet with the family; an Indian expert is also likely to have a better understanding of local conditions and the parties’ competing proposals for child care arrangements in that country. An additional factor that has carried particular weight in my assessment is Mr Malhotra’s evidence that there is no mechanism for the direct enforcement of orders of the English court in India, and that any application to give them effect in India would lead to the Indian court exercising its own welfare jurisdiction de novo, with the English order representing, at best, one factor that the court would take into account in its own welfare assessment. There thus appears to me a considerable risk that if the English court goes down the route of seeking to make welfare orders pursuant to its jurisdiction under section 2(1)(b)(i) FLA 1986, there will effectively be a duplication of proceedings with the Indian court making the final decision in any event. In my view this is a recipe for delay and the incurring of unnecessary costs and would in itself be inimical to AH’s interests.[76]I have reached this conclusion with considerable hesitation. I regard the father’s decision to take the child away from the mother with no prior discussion or notice in December 2025 and his subsequent attempts to control the mother’s contact with the child to be unconscionable. Whatever the rights and wrongs of the breakdown of the parties’ marriage, I consider the father’s current refusal to permit the mother unsupervised contact with AH to be harmful to the child’s interests. I have therefore considered carefully whether I should use such jurisdiction as I have to make orders to enable this to happen on an interim basis. On balance though, having concluded that the Indian court is better placed to determine issues of welfare, I consider that I should now leave all matters to the courts in that jurisdiction. I would however urge the father to reflect upon what I have said in this judgment in the hope that unsupervised contact between the mother and AH can be agreed pending the first hearing of welfare proceedings before the Indian court.[77]I will therefore stay the mother’s applications under the Children Act 1989 and the inherent jurisdiction.

A Hemain Injunction

[78]The final issue that I need to consider is whether to grant a Hemain injunction to restrain the father from pursuing his Indian divorce proceedings. The parties are agreed on the applicable legal principles which are set out in the judgment of Baker J (as he then was) in S v S (Hemain Injunction) [2010] EWHC 3224 (Fam); [2010] 2 FLR 502 at [19]:(1) “If an English court concludes that it is the natural forum for the adjudication of a dispute, and that by proceeding in a foreign court, one of the parties is acting oppressively, the English court may, in the interests of justice, grant an injunction (commonly called an 'anti-suit injunction') restraining that party from pursuing the proceedings in the foreign court.(2) The general principle is that an anti-suit injunction will only be granted where it can be shown: (a) that England is the natural forum; and (b) that the pursuit of the foreign proceedings would be 'vexatious or oppressive': per Munby J in Bloch v Bloch, at para [47].(3) In contrast, a Hemain injunction is not a perpetual injunction permanently restraining the pursuit by a spouse of foreign proceedings; it is merely an interim injunction to maintain the status quo, to preserve a level playing field, pending the determination, typically, of that spouse's application for a stay of the English proceedings: per Munby J in R v R, at para [42].(4) The fundamental premise underlying the decision in Hemain v Hemain itself is that, where there are parallel proceedings in two different courts, fairness requires that neither party should be permitted to litigate the substantive issues in either court until such time as both courts, having disposed of any preliminary issues as to jurisdiction, are ready to embark upon a consideration of the substantive issues: R v R, at para [49].(5) What in principle justifies the grant of such an injunction is the forensic advantage that the other spouse unfairly seeks to gain by disputing that England is the appropriate forum (and thus holding up the English proceedings) whilst at the same time treating himself as free nonetheless to pursue his own proceedings abroad. The purpose of a Hemain injunction is to prevent one spouse stealing a march on the other by manipulating the two sets of proceedings to his own forensic advantage, more particularly in a manner that can properly be characterised as vexatious, oppressive or unconscionable: R v R, at para [55].(6) It is not sufficient for this purpose simply to demonstrate that the respondent is seeking a stay of proceedings in this country whilst continuing in the meantime to litigate abroad. Such conduct may in some circumstances be vexatious or oppressive. In other circumstances it may not be. It all depends on the particular facts: R v R, at para [43].(7) A Hemain injunction has only a limited impact. Absent a permanent anti-suit injunction, there is ultimately bound to be a race between the two courts if neither is prepared to relinquish jurisdiction. A Hemain injunction does not and cannot control that race. All a Hemain injunction can do is ensure that the race is run on a level playing-field and, by preventing the other party stealing a march on the other, ensure that the race is fairly run. In practical terms this means ensuring, so far as possible, that each race starts at the same time: R v R, at para [58].(8) It is unfair – and typically it will be unconscionable – for one spouse to seek to mire the proceedings in one court in preliminary disputes as to whether that court has jurisdiction (or if it has, whether it should exercise jurisdiction) whilst at the same time seeking to proceed with the substantive proceedings in the other court: R v R, at para [58].(9) When an English court makes a restraining order, it is making an order which is addressed only to a party before it. The order is not directed against a foreign court. The order binds only that party in personam and is effective only insofar as that party is amenable to the jurisdiction of the English courts so that the order can be enforced against him or her: R v R, at para [39].(10) It is not of itself vexatious, oppressive or unconscionable for a husband to pursue what we would call divorce and ancillary relief proceedings in a foreign court merely because his motive for doing so is to obtain what for him will be a financially more advantageous – even much more advantageous – order, and for his wife a financially less advantageous – even much less advantageous –[79]I can deal with this issue relatively briefly. As I have found above, I consider that the father did not act in good faith when instructing his English solicitors to ask the mother’s English solicitors to hold off issuing divorce English proceedings whilst seeking to file his own divorce application before the Indian court, and I consider that this is potentially the type of behaviour that could properly ground an application for a Hemain injunction.[80]However, as matters have played out, the father has not derived any tactical advantage from this conduct. Both sets of proceedings were filed with the respective courts within 24 hours of each other and in fact, the English proceedings were issued by the Family Court some weeks before the Indian Court issued the father’s proceedings. Issues of jurisdiction and forum have now been raised in both sets of divorce proceedings. Directions have been given in the English proceedings for these to be resolved on the first open date after 27 July. The next hearing in the Indian proceedings is listed for 24 August (although I am unclear whether the Indian Court will proceed to resolve these issues on that occasion). As matters stand, it appears to me that the two sets of proceedings are currently proceeding in parallel and that to the extent that the father has sought to steal a march on the mother by urging her to delay the issue of the English proceedings, he has failed to achieve this objective.[81]In such circumstances I consider that there is no need for a Hemain injunction in this case. An injunction is an equitable remedy, and it is neither unfair to either party nor unconscionable to let the jurisdictional issues that are raised by the two sets of proceedings continue in parallel on the timetables that have been set by the two courts and accordingly I decline to make such an order. However, I should make clear that I have reached this conclusion on the basis of the recent orders that have been made in the two sets of divorce proceedings, and the timetables that each has laid out for the determination of the jurisdictional issues raised. Had the Indian court set a more accelerated timetable for the determination of issues of its own jurisdiction, it is likely that I would have reached a different conclusion. I therefore consider that the mother had proper grounds in bringing this matter before the court at the time when her application for a Hemain injunction was issued, even though I have ultimately declined to make the order sought.[82]That is my judgment. ***********************

Order

Jurisdiction) [2017] Fam 235 that such a broad interpretation of section 2(1)(b)(i) would “drive a coach and horses” through the accepted approach to issues of jurisdiction, noting that the section provided an alternative basis for jurisdiction and would have to be applied in a manner which did not cut across the jurisdictional framework of the 1996 Convention when that applied, and referring to the power of the court to stay an application brought on the basis of jurisdiction under section 2(1)(b)(i). At para [96] in Re T Moylan LJ summarised the position thus: “…it seems to me that the simple approach to be applied to sections 2 and 2A of the FLA 1986 is that they give the court jurisdiction when the parties in the matrimonial proceedings are or were "the parents of the child concerned"; that the matrimonial proceedings are taking place or did take place in England and Wales (and concluded other than by dismissal); and that one or other or both of the parents seek a section 1(1)(a) order.” This position was reaffirmed in his subsequent judgment in Re S at [108]. order: R v R, at para [38]. (11) When seeking a Hemain injunction, in contrast to a permanent anti-suit injunction, there is no need to show that England is the natural forum. To require the applicant for a Hemain injunction to show that England is the natural forum would be to require her to demonstrate the very thing that, ex hypothesi, has yet to be determined and that may very well not be ready to be determined. To impose such a requirement would be to make the jurisdiction self-stultifying: R v R, at para [54]. (12) In exercising the jurisdiction to make anti-suit injunctions and Hemain injunctions, regard must be had to comity, and so that jurisdiction is one that must be exercised with caution: R v R, at para [28].