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(Family Division, Peter Jackson J, 23 September 2013)
The mother and father, who were of Bangladeshi origin, settled in the UK where their two children were born. When the travelled to Bangladesh for a planned visit the father returned alone claiming the maternal family had held the mother and children against their will. The mother claimed the father had abandoned the family and they were offered protection by the maternal family.
The father had successfully applied to the court in Bangladesh for custody and restitution of conjugal rights. In order to enforce that judgment he sought a return order which his advisors recommended would be highly persuasive in the proceedings in Bangladesh. The father, therefore, issued wardship proceedings. If he were successful in establishing jurisdiction he sought an ordering requiring a return of the children to the UK. He claimed the children were being neglected by their mother and that she was failing to obey the order of the Bangladeshi court.
In circumstances where the children had been in Bangladesh for 5 years, taking into account the relevant factors and applying the test established by the European court they could not be found to have been habitually resident in England on the date the father issued his application. Jurisdiction could not be founded on the basis of habitual residence.
Following the decision of Re A (Jurisdiction: Return of Child)  UKSC 60,  FLR forthcoming, there was a theoretical basis for exercising jurisdiction on the basis of the children's British citizenship, however, in this case it would be inappropriate for the court to do so. The Bangladeshi court had long been seized of the matter and the father was able to press his case before the court.
Even if the father had been able to establish jurisdiction it would not have been appropriate to grant the orders sought on the basis of such limited information when the court of another jurisdiction was already seized and where the consequences of such orders were so significant.
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