High Court hears jurisdiction dispute over a child living in India

The High Court (Family Division) has considered whether the English courts can decide arrangements for a British child living in India, in a dispute over habitual residence, divorce proceedings and nationality.

In Re AH (A Child) [2026] EWHC 1358 (Fam), handed down on 8 June 2026, Mr David Rees KC, sitting as a Deputy Judge of the High Court, dealt with competing claims between parents about which country's courts should decide matters concerning their son. The judgment was delivered in private and published on condition that the anonymity of the child and his family is strictly preserved. The child is referred to as AH.

Background

AH is a British citizen with Overseas Citizen of India status, as are his parents. It was common ground that he lived in the UK until at least November 2023 and was habitually resident here at that date. It was also common ground that the whole family had lived in India since at least March 2024, although the parents disagreed about when the move happened.

The marriage broke down in the second half of 2025. On 23 December 2025 the father left the family home in India with the child, without notice to the mother, and kept him. The mother applied in England for child arrangements orders under the Children Act 1989 and for a wardship order, seeking the child's return to England. She also applied for a Hemain injunction to restrain the father's divorce proceedings in India. The parents issued competing divorce proceedings, in England and in India, and each is contesting the other court's jurisdiction and forum.

The question

The mother argued that the court could act because the child remains habitually resident in England and Wales. Alternatively, she argued that it could act because divorce proceedings between the parents are ongoing here, or because of his British nationality.

The father disputed the first two grounds and argued that, even if jurisdiction existed, the court should not exercise it. He accepted that the court would keep a limited jurisdiction based on nationality, but said this was not an appropriate case for it.

The evidence

The judge accepted the mother's evidence that the move to India was intended to last for the duration of her employment there, rather than being a permanent relocation. He said a permanent move would probably have led the family to take more steps to tie up their lives in England, such as selling their properties.

The court also heard from an Indian family law advocate, who said that:

• India is not a signatory to the 1996 Hague Convention.
• Indian courts take jurisdiction over a child who "ordinarily resides" within their area, a concept distinct from habitual residence.
• The child's welfare is the paramount consideration in Indian proceedings.
• An order of a foreign court relating to a child ordinarily resident in India could not be directly recognised or enforced in India. A fresh application would have to be brought there, with the foreign order as one factor.
• Timescales for full determination can vary widely and be difficult to predict, particularly if there are appeals.

Sources

• AH (A Child) (Jurisdiction: Habitual Residence: Section 2(1)(b)(i) Family Law Act 1986), Re [2026] EWHC 1358 (Fam), High Court (Family Division), 8 June 2026