Child caught up in parental dispute should be returned to India

The Family Court has ordered that a five-year-old boy caught up in a parental dispute should be returned to his father in India.

The mother and father were both Indian nationals.

They had met in the UK where their son was born in 2016. In 2018, they moved to India and became habitually resident there. The son attended school in India and enjoyed relationships with both his maternal and paternal extended families.

The mother claimed that throughout the marriage the father had been economically, physically and emotionally abusive and had exercised controlling and coercive behaviour towards her.

The father denied the claims and maintained that the mother was mentally unstable.

In April 2021, the mother left the father and made a complaint to the Indian police about his behaviour. In June 2021, the father issued proceedings in India seeking custody of the boy.

The mother was served with the proceedings on 2 July and was given notice of a hearing on 7 July.

However, on 5 July, she booked a flight to the UK for herself and the child and the following day they flew to the UK. They remained in the UK, living in temporary accommodation provided by a local authority. The mother had applied for state benefits.

The Family Court granted the father’s application that the son should be returned to him in India.

It held that it was in the boy’s best interests to be returned as soon as possible and for his future to be determined by the courts in India.

India was the country to which he was most closely connected: it was where his religion, his culture and ethnicity were deepest rooted. He was receiving a good education there and had a significant network of relatives on both sides of his family.

His situation in the UK was at best transitory and fragile: he was housed in temporary accommodation, with no established financial security and limited family support.

He was closely attached to the mother, and his physical and emotional needs were met by her.

However, he needed a safe relationship with his father.

As for his educational needs, he was successfully integrated in full-time private education in India and there was currently no school provision for him in England.

There was little doubt that the mother had demonstrated a capability to care for him. However, she had taken clandestine action in removing him to the UK and that was primarily prompted by her wish to avoid engaging in family court proceedings in India.

There was little evidence that she had given any real thought to the implications of her decision. She had become dependent on the local authority for her basic subsistence and in that regard, her capability as a responsible parent had been found wanting.

The mother raised serious allegations of domestic abuse. The instant court was not trying that issue, but the risk of harm from that alleged abuse could be appropriately mitigated by the extensive protective measures which the father had offered as undertakings and orders.

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J v J
Family Division
27 August 2021
[2021] EWHC 2412 (Fam)