W v S [2024] EWHC 3105
Partner Ashley Le-Core instructed Dr Onjoya Momoh of 5 Pump Court Chambers in concurrent non-Hague return (inherent jurisdiction) and permanent relocation applications, with allegations of domestic abuse, representing the Respondent Mother.
Background to the case
The case dealt with applications from both the Applicant Father and the Respondent Mother. The parties are both Chinese citizens, but habitually resident for the duration of their marriage, in the UK. The parties had one daughter, A, aged 4.5 years old at the time of the hearing, a British citizen. The marriage lasted 7 years, until January 2024.
The date of separation was agreed to be 12th January 2024, when M informed F she wanted a divorce. She was in China in January 2024, after travelling there on Boxing Day 2023 to seek urgent medical attention for A, which was unfortunately misdiagnosed in the UK. M and A resided with the maternal family. F remained in England.
Over the following weeks, M remained in China, and F visited his own family but did not have face-to-face contact with his daughter. In March 2024, M drafted an agreement with terms for consideration, including her sole custody of A and permanent relocation to China, citing A’s health as a central reason, as the medical condition A was then diagnosed with would need regular checks by her consultant in China. She stated A should attend an international school in China until she was of high school age, then may opt to attend school in the UK. Her expenses should be shared equally. As part of the draft agreement, M stated F was welcome to visit any time, and there would be annual trips to the UK to maintain face-to-face contact. This agreement was rejected.
There followed several incidents, including a maternal visit to the matrimonial home on a short trip back to the UK, without F’s knowledge. F came upon M unknowingly, and was refused access to his daughter, resulting in an altercation. A further incident occurred between the maternal grandfather and the Father.
By the time of the hearing, M had filed a divorce application in China and F made an application in England under the inherent jurisdiction. She later filed a relocation application to the English court.
M’s Case
M wanted a permanent relocation to China, and sole custody of the parties’ daughter until she reached high school age. At this point, A could choose whether to remain in China or attend school in the UK.
M requested that F support her in obtaining permanent UK residency to allow annual visits to the UK. This issue became contentious, as the F initially agreed to assist with the M’s visa, then withdrew that agreement, then agreed again and then lastly, withdrew his agreement in full. F’s inconsistency was an on-going issue throughout the case.
F was permitted to visit at any time and annual summer or winter trips to the UK would be facilitated, provided F had cooperated in M obtaining residency.
She requested equal shared input on A’s expenses including living, educational and medical.
M requested to buy out F’s interest in the matrimonial home. Their second property should go to F.
There were allegations of domestic abuse made against F.
F’s Case
F sought a return order for A under the inherent jurisdiction. He did not accept M’s draft terms and pursed an application under English jurisdiction.
Final judgment
At the final hearing, Mr Justice Cusworth was concerned with the two applications. The judgment explores the relevance of the Hague Convention on this case. It was deemed to be inappropriate as neither party were citizens of a country which conformed to the Convention, although the child was a British citizen. The primary focus of the Judge was the welfare of the child, according to the welfare checklist.
He saw no evidence of domestic abuse, and was happy to judge that both parents were capable of caring for A. It was of paramount importance that she had a relationship with F and the paternal family. Both the return application and the relocation application were therefore considered through this lens.
As a result of A’s age, and her residing in China, it was deemed unnecessary to involve Cafcass.
Cusworth J ultimately ruled that A remain with M in China as she was now habitually resident there and not in England. However, the contact matter needed to be resolved ‘fully and comprehensively’, particularly considering the fact that F had never ‘unequivocally consented to A’s permanent removal from this jurisdiction to China’.
It was determined that A needed consistent, face-to-face contact with her father, and both sides of the extended family which would be in her best interests. Provided the arrangements proposed by M in terms of contact and travel were put into immediate effect, it was considered to be appropriate that A spend the next few years in China with her mother until an agreement should be made between the parties as to her ongoing education, or a default order is made by the Chinese court.
No order was given on F’s return order application.
