[2025] EWHC 911 (Fam)

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.