W v S [2024] EWHC 3105 (Fam)
Stowe Family Law Partner Ashley Le-Core instructs Dr O Momoh of 5 Pump Court Chambers in a concurrent non-Hague return and permanent relocation application, allegations of domestic abuse.
Stowe Partner Ashley Le-Core recently instructed Dr Momoh representing the Respondent Mother in a case involving a non-Hague return and a permanent relocation application. The judgment was handed down in December 2024.
The case involved a Mother and Father, both Chinese citizens, living in Cambridge for the duration of their 7 year marriage. Their daughter, A, was 4.5 years old at the time of the hearing.
The parties had issued divorce proceedings in two jurisdictions, the Mother in China and the Father in England. The case primarily concerned child arrangements for A, who was, at the time, living with M in China with the maternal family, having travelled to China over Christmas 2023 for the daughter to seek out urgent medical attention and then had remained in China since.
A draft agreement was drawn up by M, settling sole custody of A in China until A had reached high school age, at which time she could choose whether to attend school in the UK. M requested F to support her in obtaining permanent UK residency to allow annual visits to the UK. Properties were also divided. F did not accept the agreement.
Various proposals were exchanged in the following weeks and months.
At the hearing, the Judge was concerned with two applications:
F sought a return order for A, from China, under the inherent jurisdiction.
M sought permission to permanently relocate to China with A after divorce proceedings had completed, and consequential child arrangements to be made to allow F time with A. M’s position was that this would be a relocation for around 5 years or so, when the M planned to return to the UK.
There were also allegations of domestic abuse made against F. The Judge found no evidence of controlling behaviour.
The Judge ruled that the Hague Convention was irrelevant in a case where neither parent was a citizen of a country that is party to the Convention. The welfare of the child, in both applications, should be paramount, particularly where the Hague Convention was inapplicable, and it should not be presumed that it was in the best interests of the child to return them to the UK when they had been taken abroad.
The Judge ultimately ruled that A should remain in China with M and the maternal extended family. However, contact with F needed to be resolved ‘fully and comprehensively’, as time without her Father and the paternal family would have a negative impact on her welfare. This included regular visits to the UK during her early years, and visits from the Father to China.