This judgment was handed down remotely at 2pm on 10 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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MR JUSTICE HARRISON:
This is a perfected and anonymised version of the judgment I delivered orally on 9 April 2025.
Introduction
- This appeal is about the court's jurisdiction to make orders in relation to a child and, in particular, the concept of habitual residence. For convenience, I shall refer to the appellant as 'the mother' and to the respondent as 'the father'. I mean no disrespect to either of them by doing so.
- The appeal concerns the parties' daughter G who was born on June 2010 and is now aged 14 ¾. She has an older sister, L, who was born on June 2007 and is fast approaching her eighteenth birthday. Both children were the subject of the proceedings below, but the appeal relates only to the younger girl.
- On 27 August 2024 G travelled with her father to the USA. On 3 June 2024, HHJ Raeside had made a consent order which allowed him to relocate permanently to that jurisdiction with both children. The US authorities, however, refused L a visa and so he went with G alone.
- Some six weeks later, on 12 October 2024, the mother made an application to amend the June order. The object of her application was to procure G's return to this jurisdiction in circumstances where G herself had been expressing deep unhappiness about her situation in the USA and a desire to come back to England virtually from the time of her arrival.
- Delays in the court system which were not the fault of either parent meant that the application was not fully considered by HHJ Raeside until 6 March 2025. After reviewing the papers and without convening a hearing she dismissed the application for lack of jurisdiction, determining that G was 'now' almost certainly habitually resident in the USA. The issue on this appeal is whether this decision was wrong.
Background
- The task of the judge below and indeed my own was made more difficult by the fact that the mother acts in person. This is not her fault but it has meant that her submissions have been unfocussed. For the purposes of this appeal she has prepared a bundle which runs to more than 500 pages and contains considerable duplication. The father also acts in person but has the advantage of being a qualified lawyer. He has prepared a skeleton argument which reads as though it were drafted by experienced family law counsel and has also provided copies of relevant authorities.
- From reading the documents provided by the parties, it has been possible for me to gain some understanding of the background, but this may be incomplete. The documents I have seen paint a worrying picture.
- The father is now aged nearly 61 and the mother is aged 54. L and G are the parties' only two children although the father was previously married and has two adult children by that marriage from whom he is estranged.
- The parties began a relationship in or about 2006. They decided to separate in 2020, but it appears that as a result of the Covid pandemic they remained living together in the same household despite their relationship having ended. From what I can gather the father worked full-time during the relationship and the mother was the children's primary carer. It is apparent that by 2022 there were serious tensions in the household which had an impact upon the children.
- In May 2022 the family were referred to the local authority, Surrey County Council, by the children's school. L had alleged that the mother shouted at the father every day and that she had been physical to both children. Social services made enquiries and determined that this was 'inappropriate chastisement' but did not consider that it met the threshold for intervention. L made a further similar allegation in June 2022 to her Stagecoach teacher. This led to an assessment being undertaken by social services, but no action was taken and the case was closed on 25 August 2022.
- At some point in August 2022 the mother moved out of the spacious family home. The children remained living there with the father.
- On 26 September 2022, there was a serious incident when G took an overdose of Ibuprofen tablets in an attempt to take her own life. This resulted in her being hospitalised. The mother visited G at the hospital. While she was there she made an allegation that the father had been abusive during their relationship. Soon afterwards the mother moved to a refuge with G.
- On 27 September 2022 another referral was made to the local authority. This appears to have been triggered by G's suicide attempt and also by an allegation from L that the father had assaulted her, leaving marks. A child protection enquiry was initiated pursuant to section 47 of the Children Act 1989.
- On 29 September 2022, consequent upon the mother's move to the refuge with G, the father made an urgent application for a child arrangements order. He alleged that G had been removed from hospital without his knowledge or consent. For reasons which are unclear to me this application did not come before the court for several months.
- On 17 November 2022, G returned to live with the father. The mother remained in the refuge. Eventually she was to move to her own accommodation, a small two-bedroom flat.
- On 17 November 2022, the day of G's move back to her father, the mother obtained an order for a port alert. She alleged that the father intended imminently to remove the children from the jurisdiction.
- On 25 November 2022, the local authority completed its section 47 investigation. It concluded that the children were at risk of significant harm in the care of the father. The assessment highlighted a number of concerns about his parenting. These included his consumption of alcohol and the fact that he allowed alcohol and cannabis to be consumed at home by the children.
- On 8 December 2022, a Child Protection conference was held at which the children were made the subject of a Child Protection Plan under the category of neglect. The father had refused to engage with Children's Services during the assessment and refused to acknowledge the plan.
- In January 2023 there was a further serious incident when L was admitted to hospital after taking an overdose.
- Thereafter, L made an allegation that during a party which took place at the father's home she had been raped. The father had been at home at the time, but L had to call the police to stop the party. The allegation resulted in a police investigation and L was subject to an ABE interview. It is unclear to me whether the investigation remains ongoing, but I understand that L went on to retract her allegation.
- On 26 January 2023, the urgent application which the father had issued four months previously came before the court. By this stage the father was seeking orders for the children to live with him and for permission to remove the children permanently to the USA. He had formed a relationship with a woman in the USA, GG, and he wanted to move to be with her. Directions were given, including for Cafcass to undertake the process of safeguarding.
- On 22 March 2023, DJ Bishop made various directions. These included orders for the local authority to prepare two reports pursuant to sections 7 and 37 of the Children Act 1989. The section 37 report was ordered as it appeared to the court that it might be appropriate to make care or supervision orders.
- On 21 April 2023, Surrey County Council completed its section 37 report. This recorded its involvement with the family and set out the parties' respective allegations against the other. The report concluded by making clear that the local authority did not support the father's applications. It was recommended that an order be made providing for the children to live with the mother on the basis that the local authority would provide support under the existing Child Protection Plan. It also recommended a defined contact order in the father's favour. The section 7 report was filed a month later on 19 June 2023 by the same social worker. Unsurprisingly, it expressed the same conclusions. An addendum report was later prepared on 11 July 2023: the conclusions were the same.
- On 20 July 2023, an order was made providing for the parties to share the care of the children. It is not clear to me whether this arrangement was implemented. An order was made for the matter to be listed for final hearing on the first available date after 28 August 2023.
- From the documents I have seen, it appears that the matter next came substantively before the court for a final hearing on 3 June 2024. I do not know the reason for this lengthy delay, but assume that no earlier date could be accommodated by the court. I do not know whether any further statements or reports were prepared for that hearing. As I have already recorded, on 3 June 2024 a consent order was made providing for the children to live with the father and allowing him to remove them to the USA. The mother was not represented at the hearing; I understand that the previous day her solicitors had ceased to act following a refusal of legal aid.
- The mother asserts that the father represented to her and to the court on 3 June 2024 that he had already secured visas to facilitate his proposed relocation. I do not know whether this is so. I do, however, note that the section 37 report records him making clear that he would be able to secure a visa as he was operating a business in the USA and that the children would be issued with the same visas as his dependants. In fact, as at 3 June 2024 no such visas were in place.
- On 8 August 2024, the father attended the US embassy to obtain the relevant visas. G and he were granted visas but L was refused. In a message to her mother G has alleged that in order to obtain her visa her father prevailed upon her to lie during a medical to conceal that she had self-harmed. I am unable to determine this allegation.
- The US authorities' decision to refuse L a visa did not cause the father substantively to change his plans. That same day, he booked flights for G and himself to travel to the USA on 27 August 2024. He had decided that L would have to remain in England.
- Thereafter, the father took further practical steps to organise the relocation. He sold his car. The family cats were transported to the USA. Furniture was removed from his home and either shipped to the USA or given away to friends or charities. He gave up the tenancy on his house.
- On 27 August 2024 the father and G flew to New York. L remained in England and moved to live with the mother.
- Upon arriving in the USA the father and G travelled to Connecticut to start a new life with his partner and her four children. The father and his partner have subsequently married and I shall hereafter refer to her as his wife. G started at a school on 28 August 2024, the day after her arrival.
- There is an abundance of evidence to demonstrate that G has been deeply unhappy about the move to the USA virtually from the moment of her arrival and that she has made efforts to procure her return to this jurisdiction. I shall set this out in more detail below.
- On 2 October 2024, the mother signed an application seeking to amend the order of 3 June 2024. This was issued by the court on 12 October 2023.
- On 22 October 2024 HHJ Raeside made a provisional order recording that it appeared that the court had no jurisdiction for 'the children (sic), given they have moved to the USA with the father with the permission of the court'. The mother was directed to file evidence addressing the issue of jurisdiction. She duly did so, but there was then a lengthy delay in the court system before the application was referred back to the Judge.
- On 6 March 2025 HHJ Raeside dismissed the mother's application on the basis that she did not have jurisdiction. She held that it was almost certain that G's habitual residence is 'now in the USA'.
- The mother filed an appeal against this decision and I granted permission to appeal on 20 March 2025.
The evidence about G's situation in the USA since 27 August 2024
- It is plain from the evidence I have seen that within days of her arrival in the USA, G was sending messages to her mother making clear that she was very unhappy and that she wanted to return to England. It is not clear to me when the first such message was sent. An exchange by WhatsApp on 4 September 2024 demonstrates that by this date G had already made known that she wanted to return to England and that the father and his wife were preventing this from happening. That day, G wrote to her mother: 'can u tell [the father's wife] to send me back she just tried to start an entire state police search now she's tryna send me to a boarding school it's her that won't let me leave not daddy he doesn't rlly care'.
- On 5 September 2024 G reported to her mother that she had called the police who said that 'it didn't sound right what daddy was saying to me' and that they would send an officer round. That same day, the mother was herself in communication with the Westport police about her daughter's situation.
- In an exchange of messages between G and the father on or around 12 September 2024 he wrote 'if Mummy says you are to return to the UK, it is she that has to make the application. I can't fly to the UK to make the application (or for any other reason). She needs to attend court, which I cannot do'.
- Throughout September 2024 G continued to make it clear to her mother that she wanted to return to England. For example, on 20 September 2024 she wrote: 'tbf what else could go wrong there's literally nothing.. cos when I get back ill have my [best friend] my [other best friend] theres literally nothing that can go wrong'. On 23 September 2024 she wrote about how she had spoken to her counsellor about 'what daddy's doing'.
41. It also appears that G was seeking to enlist the help of the US police to facilitate her return. In one message to her mother sent around this time, she wrote: 'he's so mad… he knows there's nothing he can do about it n he actually shit himself when I said police r gunna help me get to the airport n stuff I was just like u can either support me or I'll do it alone..' She later wrote to her mother that the police would require sight of a court order to enable her to leave.
- From the evidence I have seen, it appears that the father had represented to G that he did not have her passport as it had been provided to the immigration authorities. G, however, came across the passport and challenged her father about what he had told her. In his skeleton argument prepared for this appeal, the father says that on 7 October 2024 he reported to the Passport Office that G's passport had been destroyed by him and notified them that no further passport should be issued to her.
- The statement filed by the mother pursuant to the order made on 22 October 2024 exhibits some hand written letters from G. These are largely illegible in the PDF bundle I have. In one letter, however, I can see that G described herself as being 'physically and mentally alone'. It is apparent from that letter that her relationship with her father had broken down and that she has lost all trust in him. She refers to returning from school 'to find my passport ripped up and ruined'.
- I have also seen a typed undated 'statement' from G in which she paints a very bleak picture of life in the USA (I am unclear whether this is a typed version of one of her letters or some other document). She makes clear her wish to leave the USA and to return to England and refers to 'misleading information' given by her father. She also provides a worrying account of being cared for by her father in England prior to the move to the USA. She refers to an occasion when she took cocaine at home with his knowledge.
45. In this undated statement, G says: 'Before my current move to the United States I was led to believe that I would be living in an apartment with just the three of us (my sister, my father, and I). I was aware we would be living with [the father's wife] eventually once we got to know her and where (sic) more comfortable around her.' She then proceeds to describe how the reality of what occurred was wholly different from that which she had been led to believe. From the outset she found herself living at the father's wife's home occupying her step-sister's room and, in her view, being poorly treated. She says: '[the father's wife] and her family made no effort to welcome me, instead made it clear I was not welcome. Throughout that time I was experiencing intense withdrawal symptoms such as migraines, depression, paranoia, anxiety and throwing up blood…'. Later in the statement says: 'I have previously attempted to run away since being in the United States due to neglect I was previously and currently experiencing. I rarely get fed, and I only eat when I cook for myself which I have to do at night so no one sees me (fear of getting into trouble) I get so scared to the point I have started experiencing hearing voices/noises and seeing things that aren't there like shadows, just scared that I will be stuck here alone for the rest of my life'. Thereafter, the statement continues in the same vein.
- I have also been provided with a further more recent statement from G which is to the same effect. The statement appears to post-date the decision of HHJ Raeside below, but it seems to me that in circumstances where the appeal concerns the position of a child and this piece of evidence was not available at the time of the decision, I am entitled to take it into account (the same applies to other recent evidence to which I refer below). The statement concludes as follows:
"I have felt many emotions these past months they have only gotten worse When I first arrived I felt betrayed guilty hopeless and insane Those feelings have never left me except sometimes I just feel numb now I get headaches/migraines stomach ache achy muscles from stress and paranoia that something will happen to me every day Those feelings get deeper and deeper.
I have written so many statements these past months putting my entire heart on the table just to have it crushed every single time So please if you took the time to read this I am forever thankful to you for giving me one last hope Please help me reunite with my family my home my education my country and the people I love and care deeply about thank you for your time."
- It is clear from the evidence I have seen that G's unhappiness about being in the USA was not a passing phase. The mother asserts that in January 2025 G made a further suicide attempt although I have not seen evidence to corroborate this. There is, however, evidence that G has set up a 'Gofundme' page seeking to raise funds to assist her return to the UK. Since September 2024, she has also sent further worrying texts to her mother about her situation. In one message she said that she would kill herself if not back by Christmas.
- I have also been provided with a record of a meeting convened on 28 February 2025 by the Westport School District Planning and Placement Team. I do not think that this was provided to HHJ Raeside, but I consider that I should take it into account. This document records the father telling the meeting that 'the first 2-3 months were challenging for G to integrate at home and school'. He had, however, seen marked improvement and 'overall she seems happier'. One of the teachers present at the meeting, Mrs F, noted that 'G always knows what she wants to work on but is not working on [school] assignments. She is trying to do work she thinks will transfer to the UK. She is following online guide for UK curriculum so looks engaged but is not on task with her current work.' The father stated that 'G is focused on returning to the UK but she does not know there are barriers to her returning. Her mother in the UK is giving her the message that she can return'. The school counsellor reported to the meeting that G attends weekly counselling but also 'stops in at least two other times'. During those sessions, G 'is preoccupied with wanting to return to the UK. She can be emotional about it. She talks quickly and her speech is pressured'.
- I have also seen a report from the Westport Police Department dated 30 March 2025 in relation to a call out they received to the father's home on that date. This was not available to HHJ Raeside, but again I consider that I am entitled to take it into account. It appears that G had become upset after being told by the father that she would not be able to travel to England for some considerable time due to an issue with her passport. G responded by damaging the father's laptop with a knife. She yelled at her father and step-mother before running to her room. The police officer observed G to be crying hysterically. She said to the officer that her father had told her that she would have to wait until she was an adult before applying for a passport. The officer calmed G down and gave her advice about managing her anger. The officer then spoke again to the father and his wife who stated that their preference was for G to be sent to hospital for an evaluation. When asked for their reason they stated 'to get a break from her'. When the officer informed them that committal was a serious process to be used only for individuals requiring immediate medical assistance due to safety concerns, the father and his wife asserted that they did not feel safe with G and wished for her to be transported to hospital. The report states that the officers assessed the situation and 'determined that G's parents' (sic) request for a hospital transport was not based on a genuine desire for safety but rather a desire for a temporary separation from G'.
The law
- In considering the question of jurisdiction it is convenient to start with the Family Law Act 1986. Section 1 sets out the orders to which Part 1 of the Act applies. These include:
(a) By virtue of section 1(1)(a) an order made pursuant to section 8 of the Children Act 1989, other than an order varying or discharging such an order;
(b) By virtue of section 1(1)(d) an order made under the court's inherent jurisdiction so far as it gives care of a child to any person or provides for contact with, or the education of a child, but excluding an order varying or revoking such an order.
- Section 2(1) of the 1986 Act sets out the court shall not make a section 1(1)(a) order unless one of two situations applies:
(a) It has jurisdiction under the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children; or
(b) The 1996 Hague Convention does not apply but
(i) [not relevant in this case] or
(ii) The condition in section 3 of the Act is satisfied
- Section 2(3) of the 1986 Act sets out that the court shall not make a section 1(1)(d) order unless one of two situations applies. So far as is material for present purposes these are identical to those set out above.
- The condition in section 3 of the Act, again so far as is material, is that on 'the relevant date' the child concerned is habitually resident in England and Wales. The relevant date is defined in section 7 of the Act. For present purposes it means the date of the application.
54. The application made by the mother on 12 October 2024 in From C100 was expressed as being for a specific issue order requesting 'Court amendment for either child to return to the UK if choose to do so…'. In form, arguably at least, this was an application to vary the previous order made in June and therefore fell outside the ambit of orders within section 1(1)(a) of the 1986 Act. What the mother was seeking in substance, however, was an order providing for G to return to England and Wales. Such an order, it seems to me, would fall squarely within section 1(1)(a), meaning that the jurisdictional requirements in section 2(1) of the Act needed to be satisfied.
- The court's jurisdiction to make the order for which the mother applied essentially depends upon whether G was habitually resident in England and Wales on 12 October 2024, the date of the mother's application: see Art 5 of the 1996 Hague Convention and section 2(1)(b)(ii) of the Family Law Act 1986.
- In order to determine whether the court has jurisdiction under the 1996 Hague Convention it is necessary first to consider habitual residence on the date of issue of the proceedings. The court may, however, lose jurisdiction if, by the time of the hearing, habitual residence has transferred to another State. In that event, and assuming that the 1996 Hague Convention does not apply, section 2(1)(b)(ii) of the Family Law Act 1986 (read in conjunction with sections 3 and 7 of the Act) confers a residual jurisdiction on the court based upon the child's habitual residence on the date of the application: see Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA 659.
- The USA is not a party to the 1996 Hague Convention. Therefore if G ceased to be habitually resident at any stage following the move, this would be a case to which that Convention 'does not apply' for the purposes of the 1986 Act.
- The concept of habitual residence has been considered by the Supreme Court on a number of occasions since 2011. In Re B (A Minor: Habitual Residence) [2016] EWHC 2174. Hayden J summarised the principles, a summary later adopted with one modification by the Court of Appeal in Re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105. I have regard to all of the principles in that summary (as amended). In particular:
(a) The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment. It is not necessary for a child to be fully integrated before becoming habitually resident. The requisite degree of integration can, in certain circumstances, develop quite quickly. It is possible to acquire a new habitual residence in a single day.
(b) The test is essentially a factual one which should not be overlaid with legal sub-rules or glosses. The factual enquiry must be centred throughout on the circumstances of the child's life that are most likely to illuminate his habitual residence.
(c) The meaning of habitual residence is 'shaped in the light of the best interests of the child, in particular on the criterion of proximity'. Proximity in this context means 'the practical connection between the child and the country concerned'.
(d) It is possible for a parent unilaterally to cause a child to change habitual residence by removing the child to another jurisdiction without the consent of the other parent.
(e) A child will usually but not necessarily have the same habitual residence as the parent(s) who care for him or her. The younger the child the more likely this proposition is to be true.
(f) Parental intention is relevant to the assessment of habitual residence, but not determinative.
(g) It will be highly unusual for a child to have no habitual residence. Usually a child will lose a pre-existing habitual residence at the same time as gaining a new one.
(h) It is the stability of a child's residence as opposed to its permanence which is relevant.
- In Re B (A Child) (Habitual Residence) [2016] UKSC 4, Lord Wilson drew an analogy between the process by which habitual residence transfers from one jurisdiction to another and the operation of a see-saw. He did so to illustrate the point that a change of habitual residence is likely to take place seamlessly such that an existing habitual residence will be lost at the same time a new one is gained. As to the length of time needed for a transfer to take place, Lord Wilson, whilst declining to provide formal guidance on the issue, set out the following 'expectations' at para 46:
(a) the deeper the child's integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state;
(b) the greater the amount of adult pre-planning of the move, including pre-arrangements for the child's day-to-day life in the new state, probably the faster his achievement of that requisite degree; and
(c) were all the central members of the child's life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it.
- These expectations were highlighted by Moylan LJ in Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA 659. By contrast, however, in Re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105 Moylan LJ held that Lord Wilson's see-saw analogy needs to be approached with some caution. He stated at paragraphs 61 and 62 that:
"while Lord Wilson's see-saw analogy can assist the court when deciding the question of habitual residence, it does not replace the core guidance given in A v A and other cases to the approach which should be taken to the determination of the habitual residence. This requires an analysis of the child's situation in and connections with the state or states in which he or she is said to be habitually resident for the purpose of determining in which state he or she has the requisite degree of integration to mean that their residence there is habitual.
Further, the analogy needs to be used with caution because if it is applied as though it is the test for habitual residence it can, as in my view is demonstrated by the present case, result in the court's focus being disproportionately on the extent of a child's continuing roots or connections with and/or on an historical analysis of their previous roots or connections rather than focusing, as is required, on the child's current situation (at the relevant date). This is not to say continuing or historical connections are not relevant but they are part of, not the primary focus of, the court's analysis when deciding the critical question which is where is the child habitually resident and not, simply, when was a previous habitual residence lost."
- A crucial element of the 'core guidance' to which Moylan LJ referred is that 'The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment'. In Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA 659 at para 41 Moylan LJ added this important qualification:
"It is clear, however, not only from Proceedings brought by A itself but also from many other authorities, that this is a shorthand summary of the approach which the court should take and that "some degree of integration" is not itself determinative of the question of habitual residence. Habitual residence is an issue of fact which requires consideration of all relevant factors. There is an open-ended, not a closed, list of potentially relevant factors." [my emphasis]
After citing from Proceedings brought by A , Re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] AC 1038 and Re R (Children) (Reunite International Child Abduction Centre and others intervening) [2015] UKSC 35, Moylan LJ continued at paras 45 and 46:
"I refer to the above, not to put forward any gloss on the meaning of habitual residence… but simply to demonstrate that "some degree of integration" is not a substitute for the required global analysis.
I would add that, self-evidently, a test of whether a child had "some degree of integration" in any one country cannot be sufficient when a child might be said to have some degree of integration in more than one State. This is why, as referred to in my judgment in Re G-E (Children) (Hague Convention 1980: Repudiatory Retention and Habitual Residence) [2019] 2 FLR 17 … at [59], the "comparative nature of the exercise" requires the court to consider the factors which connect the child to each State where they are alleged to be habitually resident."
- In the case of an adolescent child, the 'potentially relevant factors' to which Moylan LJ referred include the child's state of mind following the move. This is a proposition which derives from the Supreme Court's decision in Re LC. In that case, Lord Wilson (with whom the majority of the Court agreed) said the following at para 37:
"Where a child of any age goes lawfully to reside with a parent in a state in which that parent is habitually resident, it will no doubt be highly unusual for that child not to acquire habitual residence there too. The same may be said of a situation in which, perhaps after living with a member of the wider family, a child goes to reside there with both parents. But in highly unusual cases there must be room for a different conclusion; and the requirement of some integration creates room for it perfectly. No different conclusion will be reached in the case of a young child. But, where the child is older, in particular one who is an adolescent or who should be treated as an adolescent because she (or he) has the maturity of an adolescent, and perhaps also where (to take the facts of this case) the older child's residence with the parent proves to be of short duration, the inquiry into her integration in the new environment must encompass more than the surface features of her life there. I see no justification for a refusal even to consider evidence of her own state of mind during the period of her residence there. Her mind may—possibly—have been in a state of rebellious turmoil about the home chosen for her which would be inconsistent with any significant degree of integration on her part. In the debate in this court about the occasional relevance of this dimension, references have been made to the 'wishes' 'views' 'intentions' and 'decisions' of the child. But, in my opinion, none of those words is apt. What can occasionally be relevant to whether an older child shares her parent's habitual residence is her state of mind during the period of her residence with that parent. In Shah's case, cited above, in which he propounded the test recently abandoned, Lord Scarman observed ([1983] 1 All ER 226 at 235–236, [1983] 2 AC 309 at 344) that proof of ordinary (or habitual) residence was 'ultimately a question of fact, depending more upon the evidence of matters susceptible of objective proof than upon evidence as to state of mind'. Nowadays some might not accept that evidence of state of mind was not susceptible of objective proof; but, insofar as Lord Scarman's observation might be taken to exclude the relevance of a person's state of mind to her habitual residence, I suggest that this court should consign it to legal history, along with the test which he propounded." [my emphasis]
Submissions on the appeal
- The mother found it difficult to formulate her arguments within the required legal framework. In essence, her case is that it was never envisaged that the siblings would be separated such that G would be travelling to the USA on her own. She asserted that G was taken to that jurisdiction 'against her will'. On her case, after L was refused a visa, the father should have restored the matter to court. Further investigation would have established that G was opposed to going to live in the USA without her sister. She said that after four days G thought that she would be able to return home. The father has prevented from doing so, which has caused her considerable distress. She has not become integrated in the USA and remains habitually resident in England, the country with which she retains very substantial connections.
- The father disputes that G was taken to the USA against her will. He informed me that after L was refused a visa, he determined that following his arrival in the USA he would make a renewed application for her to be able to come and live with him on the basis of her attending college in that jurisdiction. L subsequently applied for a place at a college in Miami, but this was refused. She continues to hope that she will be able to study in the USA and thus the father believes that in due course she will be able to join him in that jurisdiction.
- On the father's case, when G travelled with him to the USA she was aware that this was to be a permanent relocation. She left behind her home in England and brought her belongings with her. In those circumstances, in common with him, her habitual residence will have transferred seamlessly from England to the USA on 27 August 2024, the moment the aeroplane landed in New York or perhaps even while it was in mid-air. The father emphasised the distinction made by Lord Wilson in Re LC between a child's state of mind and her wishes, views, intentions or decisions and that a similar distinction was drawn in the same case by Baroness Hale. On his case, G's state of mind as the moment of travel was that she was embarking upon a permanent relocation, meaning that her pre-existing habitual residence was lost instantly. Her subsequently expressed wish to return to England does not affect that position. He drew a comparison between G's situation and the example of an émigré alighted upon by Baroness Hale in Re A (Children) [2013] UKSC 60 at para 74.
- The father submitted that whilst G may not have established roots in the USA as at 27 August 2024, there is concrete evidence that on that date she had 'completely disengaged' from her roots in England.
- The father also submitted that in circumstances where the court had granted him permission to remove G permanently from the jurisdiction and that decision had been given effect, it was not open to the mother to apply for the decision to be reversed. He submitted that the issue was 'res judicata'. The father made the point that the 1980 Hague Convention could not operate effectively if a lawful order of the court which was give effect could subsequently be reversed. He contends that the appeal is an abuse of process and should be struck out. An order should be made to prevent the mother from making further applications to this court to vary the order of 3 June 2024.
- The father further submitted that the mother's pursuit of an application for G's return to England has caused instability for her. He considers that once the litigation in England is at an end, he and his wife will be able to get on with their lives and G will become happier and more settled in the USA.
Analysis and conclusions
- In her concise ruling of 6 March 2025, HHJ Raeside focussed upon whether G was 'now' habitually residence in the USA. In my judgment, this was the wrong question. The main issue that needed to be addressed was whether she retained her habitual residence in England and Wales on 12 October 2024. Moreover, I also consider that in dealing with the issue on a summary basis the Judge did not carry out the global analysis which is required when considering the issue of habitual residence. I have considerable sympathy for the Judge who was placed in an invidious position by unfocussed way in which the case was presented and the fact that neither the relevant legal principles nor any of the authorities which have been placed before me were brought to her attention. Having reached these conclusions, however, it is open to me to set aside the decision below and consider the matter afresh.
- Having weighed up the evidence with which I have been presented and considered the arguments of the parties, I have come to the clear conclusion that G remained habitually resident in England and Wales on 12 October 2024. Indeed, I consider that as at today's date she remains habitually resident in this jurisdiction although it is not necessary for me to decide that issue for the purposes of this appeal.
- My reasons for reaching those determinations are as follows.
- It is undoubtedly highly relevant that this was a lawful relocation made pursuant to an order of the court. Normally in such cases habitual residence would be achieved in the new jurisdiction quickly following the move or even sometimes on the same day. The lawful nature of the relocation, however, is not by itself determinative of the issue of habitual residence.
- It is also relevant that the father intended this to be a permanent relocation and made plans to achieve this. G will have been aware of the basis upon which the move was being undertaken. Again, this point is not determinative of the issue. This factor and those to which I have referred in the preceding paragraph need to be weighed against the matters set out below.
- I am unable to resolve the factual issue between the parties as to whether G was taken to the USA on 27 August 2024 against her will or whether she travelled there willingly. For the purposes of this appeal, however, I will assume that the father is correct in what he says.
- It is relevant to take into account that G and her family were (and are) all UK nationals. G had never previously lived in the USA. She had lived in England for the entirety of her life. She had never previously lived apart from her older sister, save perhaps for a short period of time.
- The circumstances of G's new life in the USA were completely unfamiliar to her. She had a very limited relationship with her step-mother and as far as I know had not previously met her step-siblings. She was going to start at a new school with a new and unfamiliar curriculum.
- The background to the proceedings shows that both G and her sister were exceptionally vulnerable children about whom the local authority had raised significant concerns. Both children had made suicide attempts which had led to them being hospitalised.
- The consent order of 3 June 2024 was made in the face of the local authority's contrary recommendations. It is in my view virtually inconceivable that the mother would have agreed to such an order being made in relation to G alone on the basis that the siblings would be separated. I very much doubt that the court would have approved such an order or that G herself would have agreed to such a scenario.
- The decision of the US authorities to refuse L a visa will have been unexpected. I find it surprising that the father did not take time to reflect upon that new situation. Instead he proceeded at full pace with his relocation plan, booking flights that same day and leaving England less than three weeks later. This was not, in my judgment, a child-centric approach.
- The father's case, as I have recorded above, is that part of his planning was to procure by different means a visa for L so that she too could join his family in due course. Assuming this is so, it follows that from L's perspective the ultimate plan could not be completed on 27 August 2024. Travelling to the USA on the basis that her sister might (or might not) be able to join her at a later stage is an important factor which militates against this being a case in which G's habitual residence transferred upon arrival in the USA or shortly thereafter. The move was taking place in fundamentally different circumstances from those contemplated when the order of 3 June 2024 was made.
- Although the father may have given up his entire life in England on 27 August 2024, the same cannot be said for G. Aside from her sister (with whom she had lived for virtually all of her life), her mother remained in this jurisdiction. So too did her friends. She had a well-established life here which she was not intending to sever. Her situation was different from the hypothetical émigré postulated by Baroness Hale in Re A.
- Given G's age and the particular circumstances in which this move took place, I consider that this falls into the unusual category of cases identified by Lord Wilson in Re LC where a child has a different habitual residence from her caring parent.
- In the circumstances I have described, I find that G's habitual residence did not transfer to the USA immediately upon her arrival in that jurisdiction or soon thereafter. She remained habitually residence in England. In order for her to lose her pre-existing habitual residence and gain a new one it was necessary for her to acquire a sufficient degree of integration in the new jurisdiction by achieving a reasonable measure of stability there.
- It is incontrovertible that since her arrival in the USA G has been unhappy and unsettled in that jurisdiction. Her life has been anything but stable. She has displayed a determination to return to England which I consider to be wholly exceptional, bearing in mind that she has been acting in direct opposition to her father and step-mother with whom she has been living.
- G has been consistent in expressing a strong opposition to remaining in the USA. This is far more than a mere expression of wish. Her state of mind has been profoundly unsettled since her arrival in the USA. She plainly does not consider that she belongs in that jurisdiction. Some of the actions she has taken have been exceptional, even for a child in her situation. She has sought to involve the police. She has deliberately damaged the father's computer. She has rebelled at school by refusing to engage in the US curriculum. On the mother's case she has attempted suicide.
- G's relationship with her father and step-mother has broken down to the extent that the two of them recently sought to have her committed to a hospital, a step considered inappropriate by the officer to whom that request was made. Previously the father also took the somewhat dramatic step of destroying G's passport so as to ensure that she could not leave.
- In the above circumstances, it is plain to me that G has not achieved the requisite degree of integration in the USA for her residence there to be 'habitual'. The evidence demonstrates that her existence throughout has been fundamentally unstable. All the more so, as at 12 October 2024.
- In these circumstances, I find that as at 12 October 2024 G remained habitually resident in England and that she remains habitually resident in this jurisdiction today.
- I consider that the father is being unrealistic in his submission that G's instability has primarily been caused by the mother's application and that were the proceedings to end she would become happier and more settled. The picture I have is of a young girl – aged nearly 15 – who finds herself in a situation of crisis where her clearly expressed views are not being listened to by the adults responsible for her care. She may well be suffering significant harm as a result and may be at risk of further harm while the current situation continues.
- I reject the father's submission in relation to res judicata. It is correct that the court determined on 3 June 2024 that he should be permitted to remove G to the USA. It does not follow from this that the court is prevented from making different orders in changed circumstances at a later date, provided it has jurisdiction to do so.
- For the reasons set out above, I am clear that this court does continue to have jurisdiction and I therefore allow the appeal.
- Aside from habitual residence, the High Court also has a limited protective jurisdiction in relation to a child who is a British national, albeit this must only be exercised sparingly when the circumstances are sufficiently compelling to justify doing so. Given my conclusions on habitual residence, it is unnecessary for me to consider this further
- I propose to list an urgent hearing for the court to determine whether to make an order for G to be returned to this jurisdiction. G should be joined as a party to these proceedings and I propose to appoint a guardian to act on her behalf from the Cafcass High Court Team. I have established from Cafcass that an officer will be able to speak to G and prepare a report in relation to her wishes and feelings by 30 April 2025.
- In view of the serious welfare concerns I have for G, I have decided that she should be made a ward of court. The effect of this order is that no important decisions may be made about her without an order of the court. Her status as a ward will be further considered at the next hearing.
- I also propose to make a direction that the parties should urgently take all steps necessary to obtain a replacement passport for G to enable her to travel in the event that at the next hearing the court determines that she should return to England and Wales.
Postscript
- After giving judgment the father informed me that there exists a more recent local authority report which has not been provided to me. This report apparently contains conclusions diametrically opposite to the ones set out the earlier reports to which I have referred in my judgment. I agree with him that this should be available to the court on the next occasion. The existence of this report does not change my conclusions on habitual residence. The fact that I understood the 2024 consent order to have been made in the face of the local authority's recommendations was a small and relatively insignificant aspect of my overall evaluation on this issue.
