[2025] EWHC 911 (Fam)

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.

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.