FD25P00022 - [2025] EWHC 1222 (Fam)

I am very grateful to counsel for both parties who have been of very considerable assistance. No more could have been said on their respective clients’ behalves.

Having carefully weighed up all the evidence and submissions in the round and as part of an interlocking jigsaw, I have come to the clear conclusion that F’s application for a return order should be refused for a number of reasons.

I remind myself that the guiding principle, as explained in Re J, is the welfare of the children.

I do not find the phrase “habitual residence” of much assistance; as Baroness Hale pointed out at para 33 of Re J it has become a technical concept and one which usually is a gateway condition for relief sought. Thus under the 1980 Hague Convention the application for a return order must satisfy the court that the relevant child was habitually resident in the outgoing country in order to be able to apply for a return order. As another example, sometimes a party will apply to the English court for a return order in respect of a child removed overseas, and will ordinarily need to satisfy the court that there is jurisdiction to make such an order by reason of habitual residence (or another appropriate ground) under the Family Law Act 1986. That is not the case here. There is no dispute that the court has jurisdiction to make an order and the issue before me is welfare based. More useful is the “degree of connection” as Baroness Hale put it, which then forms one part of the welfare evaluation, influenced by, and influencing, other parts of the evaluation.

In my judgment the far closer connection of the children is with England rather than Dubai (unlike the facts in Re A and B (supra) where a return order to Dubai was made):

I take the view that M’s mother, the children’s maternal grandmother, has become an important figure in the children’s lives. She is close to M. She seems to have been a regular presence in the June 2020 to August 2024 period in England. She accompanied the family to Dubai. M and the children have lived with her in London since they all came to England in January 2025. She has made it clear in her witness statement that she would not return to Dubai if this court makes a return order. I consider it likely that she is a source of stability and reassurance for the children, and to be parted from her would be a negative consequence of a return order.

I do not accept F’s submission that because M and the children are in a different part of London than where they previously lived, that in some way militates in favour of a return order. M’s network of friends is in the previous part of London where they lived, which she goes to when she can, but in reality at present she and the children have no real alternative unless and until F makes financial provision for them to move back there (if that can be afforded), either by agreement or in financial remedy proceedings.

The children now appear to be reasonably settled in England after four months since they came here in early January (about the same length of time as they spent in Dubai). A change of circumstances occasioned by a move to Dubai is likely to be a source of instability, particularly without their grandmother and with the post relationship breakdown arrangements not yet resolved.

M’s documented mental health issues seem to me to be a significant factor, particularly when coupled with her case on domestic abuse. F agrees that she has a history of mental illness which I have outlined above. He appears to think there is a potential consequence upon her ability to care for the children, as evidenced by his email to the therapist. M’s mental health is relevant in two overlapping ways:

Although family law in Dubai for non-Muslim families has been since 2023 rather more aligned with the laws of England and Wales, and other Western based legal systems, as Mr Edge says it is new and untested. The principle of comity deserves the highest respect. But there is at least a question mark about whether M will be able realistically to pursue a relocation application with any prospect of success. At the very least, it would be understandable for her general anxiety to be exacerbated by uncertainty as to the remedies available to her. She must face, too, the possibility that her actions in removing the children will work against her. There is uncertainty also about how easy it would be to obtain domestic abuse protection orders. It may be that none of this would present difficulty but as Mr Edge said, it is all rather uncertain.

The protective measures offered by F are comprehensive and in my judgment it does him credit to have thought them through carefully. However, they are not in my judgment of such significance as to outweigh the other matters referred to herein. They address some of the practical consequences on the ground to mitigate risk of harm to the children, but the exercise before me is a welfare evaluation, not just a harm analysis as would be the case under Article 13(b)). I have to look at the wider picture, considering all relevant factors within the framework of the children’s interests. There is also a practical problem that they depend on F abiding by them. There is no evidence that he would not, and I have no reason to think he would not. But were he to renege on these commitments after the return of the children, in circumstances when there is no clear evidence of sanctions available in Dubai, M and the children would be placed in a difficult position. Accordingly, even if the risk of breach is low, the effects of breach would be significant. At the very least, it would be a source of anxiety for M to be reliant on continued adherence to the measures by F.

Further, I think it possible that they would not all be implemented before 1 July 2025, whether by way of court order in Dubai or undertaking in that jurisdiction, such that M would risk her visa being automatically invalidated upon return. Were that to occur, the consequences for M and the children (deportation and separation of M from the children) would be very grave indeed.

I am conscious of F’s concerns about the impact on his relationship with the children if they remain in England. However, he has been able to see them on, I believe, five occasions since January and he is in the fortunate position of having resources to enable him to travel and have them with him overnight. Moreover, I was assured that M would agree to an order for contact with F to be made along the lines of her proposal. I will require that to be included in the order. It should be regarded as an interim order, but I sincerely hope that it can provide a blueprint for the parties going forward.

I will provide in the order that both parties should attend mediation about finances and the children. In the light of this decision, the picture on the ground should now be clearer for mediation to make progress.

I urge both parties to reflect, at the end of this hard fought litigation, on the viewpoint of the other. F should appreciate M’s genuine worries about returning to Dubai where she would feel trapped, helpless and dependent. M should reflect on F’s genuine worries about his contact with the children, and his mistrust of M as a result of the circumstances in which she abruptly, and secretively, removed the children from Dubai.

I am satisfied that it is in the children’s interests for the application to be dismissed.

Any future child arrangements application shall be made to the local family court.