[2025] EWHC 911 (Fam)

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.