ZC24P00662 - [2025] EWHC 2691 (Fam)

All parties accepted this court has jurisdiction. I accept, on the basis of the parties’ agreed note of the law on jurisdiction, that I have jurisdiction to determine the two applications before the court. H was habitually resident in Dubai in November 2024. However, the parties accept there is also jurisdiction in England and Wales and on forum conveniens principles, this court should exercise its jurisdiction. They refer me to the decision of MacDonald J in AB v EM (Jurisdiction: Foreign Custody Order) [2020] EWHC 549 (Fam), [2020] 2 FLR 107 at [37] which applies Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460, [1986] 3 WLR 972 to the context of family justice. Further reference to establish the parties’ agreement to this court’s jurisdiction is made by reference to the decision of Williams J inRe K (A Child: Stranding Forum Conveniens: Anti-Suit Injunction) [2019] EWHC 466, [2019] 2 FLR 406, at 35 (iii).

All parties also agreed the test was best interests and the application of the welfare checklist.

There are two options: H resides with her father in England and spends time with her mother; or H resides with her mother in Dubai and spends time with her father.

A powerful factor in the welfare analysis is the need to firmly end the litigation. No party (rightly) opposed this. As Ms Demery said in evidence, H cannot enjoy time with her parents because they use that time to gather evidence against the other parent. There are many examples of this. Perhaps the most egregious is the way H was spoken to by her mother and her maternal grandfather on 31 July 2025. This was appalling behaviour. The grandfather was correct to write to the court and apologise for his behaviour. It must never happen again. Ongoing litigation increases the risk of this type of behaviour. In my judgement, this is sufficiently harmful to pass the threshold of placing H at risk of future harm. H’s welfare requires the court to take steps to end the litigation. I have more confidence that this will happen if H remains in England in circumstances where I can make a section 91 (14) order and reserve any application for permission to myself. If she were in Dubai, this court may retain jurisdiction but there would be a significant risk of litigation before the Dubai courts applying either Sharia or other law. There is the additional risk of police complaints and travel bans which this family have also weaponised. That risk is too high.

I accept the permanence of the relocation to England will seriously impair H’s relationship with the Applicant, given I also accept the Respondent and his family cannot fully promote H’s relationship with her mother. However, I am driven to the conclusion that this emotional damage to H is less harmful than the damage that would be caused by ongoing litigation. I accept the significance of this conclusion. The litigation history and the 31 July 20025 Zoom call transcript persuade me. What else has been said to H by her parents and her family that is not known and with what frequency?

The orders I make will be supported by penal notices. Non-compliance will lead to significant consequences. Any application to vary the orders made will require permission. In this way the parents will be forced to move on from their five year battle. This undignified fight over H has transformed the parties from being caring and loving parents, exercising the responsibility of parenting, to becoming tactical litigants focused on gathering evidence to put into witness statements for the next hearing. An H focused example of this is the Respondent’s tactic to buy H a cat just after the May 2025 hearing in the full knowledge, H may have been returned to Dubai four months later, in circumstances where he had no idea if the cat could accompany her. This manoeuvring is the opposite of the exercise of parental responsibility. It is driven by the litigation and has caused emotional harm to H and continues to place her at risk of emotional harm.

The Respondent has deliberately failed to resolve his outstanding difficulties in Dubai. Ms Kirby is highly critical of this, with some force. However, it assumes less significance in the welfare analysis, because I am satisfied that even if he could return to Dubai without any criminal (either by way of financial of custodial penalties) or immigration consequences (deportation or via restrictions) I would not order H’s return to Dubai. As I have set out above, it runs the high risk of litigation and/or travel bans and/or police complaints which this court cannot control. Hemain injunctions did not prevent Dubai orders. I therefore do not need to deal in any detail with the thoroughness of the Respondent’s compliance with the advice of the single joint expert. I think Ms Kirby’s submission is correct, namely that the Respondent has taken steps to create the impression of attempts to overturn the orders against him but has not in substance properly carried out the steps that the single joint expert advised. For the avoidance of doubt, if I concluded H’s welfare was better advanced living in Dubai than England, I would have had little difficulty ordering that, even if it meant the Respondent had to return to Dubai and subject himself to arrest and a brief period of imprisonment until such time as he regularised his situation with the Applicant’s waiver, as I think would be likely to happen. The single joint expert’s evidence was fairly clear on this.

Next, I do not consider there is force in Ms Kirby’s submission that the Respondent is not serious about residing with H in the south if England and his settlement here is a temporary one until such time as he can obtain effective full custody, end the proceedings and then move back somewhere to the Middle East. Ms Kirby seeks to underpin this submission with reference to: (i) the lack of evidence that the Respondent’s partner can work in the United Kingdom; (ii) his temporary living quarters: a cottage in his mother’s garden; (iii) some links with his former Dubai employer; (iv) the much smaller salary he now receives compared to his Dubai salary and (v) his and his family’s longstanding links to the Middle East. I am not persuaded there is sufficient evidence to make good these submissions. The persistence of Ms Kirby’s cross-examination did not yield results. The child arrangements order will provide for H to reside with her father (not her grandmother) in England. Should the Respondent wish to relocate he will first need to persuade me to grant him permission to litigate which will require some considerable persuasion, given his evidence at this trial. In any event his counsel accepted a two year prohibition on H travelling outside the jurisdiction of England and Wales. H is not to be left in the care of her grandparents whilst the Respondent embarks on a new career in the Middle East. If he were to do so, he would have committed a serious perjury in the witness box.

I accept Ms Kirby’s submission that the Respondent abducted H in November 2024. I accept the submission that the court should not reward the abducting parent. However, the Applicant has no proper case to put on this issue given her own conduct. She effectively abducted H from May to November 2024 by preventing all in person contact between H and the Respondent in Dubai. She was forced by the Dubai court orders and fines and eventually the involvement of the police to hand H over to her father. She retained H in breach of orders which led to this court making collection orders. She sought a travel ban to prevent H leaving Dubai whilst at the same time as she sought (contrary to orders of this court) a full custody order from the Sharia courts. Simultaneously her lawyers, acting under her power of attorney, accused the Respondent of pursuing a course of harassment against her because of her Muslim faith. Seen in this context the Applicant’s complaint about the Respondent’s removal of H from Dubai without her consent adds up to little. Furthermore, HHJ Jacklin held an inter partes hearing shortly thereafter and gave the Respondent authority for H to reside with him in England. An order in respect of which this court refused permission to appeal. I suspect the Respondent had been giving some thought to plan H’s removal but this must be seen in the context of the Applicant’s conduct from May 2024.

I am also concerned about the stability of the Applicant’s arrangements in Dubai. Until August her case was a welfare analysis predicated on her shared life with her then partner and his two young children, who were said to be close to the H. That welfare context evaporated all of a sudden in August. Instead H would return to her mother’s one bedroom apartment in Dubai. The Applicant works very hard. I ordered she could have three weeks of contact with H in September but she was unable to take this up because of her work. She accepted in evidence she has missed evening Zoom calls because of work related commitments and dinners. She would hope to retain a former maid/nanny to look after H but she could not be sure of that and was clear that her driver and a maid would carry out caring responsibilities for H. This potential arrangement does not match H’s current emotionally richer and caring environment.

Whilst H is only 5 years old, I have regard to her wishes and feelings. The Guardian is “not convinced that (H’s) wishes and feelings in terms of where she would like to live are authentically her own.” H set out views to Ms Demery:

“She told me that she loves everything about living in the United Kingdom and prefers living in England compared to Dubai. However, she said “I miss my mummy, [and the Applicant’s former partners’ children].” She added “My mummy wants me and my daddy to go back to Dubai, but not my nanny. I want to stay here”

“I explored this further with her. She said she loves the garden, which now has the Tree House with monkey bars, the school, and her friends. She spoke about her dancing show. She told me that she wishes to be a fairy. She reiterated that she wants to remain here inEngland”

Miss Renton submits these views are not authentically her own. I agree.

H has resided in England for almost 11 months. The Respondent’s evidence demonstrates how H’s physical and educational needs are met. H has benefitted from being in full time education, establishing a clear routine, enhancing her learning and development and making friends, receiving a positive school report. I also accept there are some questions about the capacity of either parent to afford school fees for H in the UAE, which could create disruption to her attainment relative to the stability afforded by her current school. I was also unimpressed by the Applicant’s attempts to shut the father out from communication with the Applicant’s chosen school in Dubai, before H had even begun, if she had returned. I accept Miss Renton’s concerns in this regard as expressed in her cross-examination of the Applicant.

Ms Demery considers H is settled in England. Ms Demery has concerns about stability in Dubai as there is no family unit and the Applicant has a demanding job. I reject the submission Ms Demery has carried out a superficial analysis - quite the opposite.

In England, H has many opportunities for socialisation and further educational development outside the classroom through extra-curricular activities. This is supported by the Ms Demery’s analysis: “(H) enjoys many activities and has settled well at school. She has a large extended family, both maternal and paternal in the United Kingdom, with whom she is enjoying spending time.”

In relation to the impact of a change of circumstances, I accept that uprooting H from the stability and consistency she is afforded at this time would have a detrimental impact on all aspects of her wellbeing. Ms Demery considers H has more to lose in Dubai.

I accept Ms Demery’s conclusion that “there would be more losses for her should she return to Dubai. She would be in a different country, not only from her father, but also her maternal and paternal family. She would be reliant upon her mother, albeit with good friends, for all her needs to be met, at a time when her mother is adjusting to a dramatic change in her own circumstances and hopes for the future.”

I do not accept the Applicant’s case on the welfare checklist. First her written submission that I should consider H’s ascertainable wishes in May does not engage with H’s later expressed wishes or what she said in the Zoom call. In any event, as I have set out above, it is not safe to place weight on her wishes and feelings, given how she has been manipulated. Secondly, I do not accept the Applicant’s submission that education in Dubai is better than England. This is an assertion without any evidential support. Thirdly, I do not accept the written case that the paternal family cannot meet H’s physical needs. Ms Demery rejected that given her own observations. Her investigations and in particular her contact with H’s school. The Applicant’s focus on the May 2024 altercation between her and the paternal grandmother demonstrates her distinct lack of focus on H’s welfare needs in October 2025. There is some merit in raising concerns about H’s dual heritage but there is no evidence that her father, his family or her current school are incapable of promoting this important part of her identity.

Ms Kirby submits in writing that: “[H] should be in Dubai and she should be seeing each of her parents regularly” but nowhere do her submissions engage with the reality that in Dubai the Applicant subjected H to serious emotional harm from May 2024 by denying her any in person time with her father or his family until the police had to get involved and force her to literally hand H over, whilst simultaneously she sought a full custody order before the Sharia courts. I would readily accept 50:50 care as per HHJ Oliver’s order in Dubai, but the reality is that wholly failed and the Applicant needs to accept her considerable share of the responsibility for that. Instead her litigation strategy at this hearing has been to relitigate the events of May 2024 and the calumny of orders and hearing that have taken since then.

Furthermore, I cannot overlook the Applicant’s conduct on the 31 July 2025 Zoom call. I have very considerable concern about the damage being done to H by such conduct and am troubled by how many more similar conversations have taken place.

For these reasons I refuse the Applicant’s application for H to relocate to Dubai. I grant the Respondent’s application for leave for H to remain in England and to attend her current primary school. Whilst this is an interference in the Applicant’s Article 8 ECHR right to respect for her family life, such an order is entirely proportionate, necessary and in accordance with the law to protect H from on-going emotional harm.

In terms of the section 8, 1989 Act ‘spends time with’ order, the following is in H’s best interests:

H is not to permitted to leave the jurisdiction of England Wales for two years. This is because of the high risk of some form of onward abduction or yet further attempt to embark upon fresh litigation or relocation. I accept it is an infringement and will impact on family holidays, but such a measure is necessary to protect H from the risk of emotional harm, which her family visit on her. I will make a section 91 (14) 1989 Act order until March 2027. No party opposed this.

I thank all counsel and solicitors for their expert assistance.