The subject married parents, were American Citizens living in East Anglia, following the fathers posting to a USA airbase there 7 years ago. They had 2 children, A, a boy aged 12 (natural parents) and B a 2 year old adopted girl. B was born in Bulgaria and adopted via a USA adoption agency, arriving in the UK in March 2025.
B suffered a head injury, which M said was caused by an injury in the bathroom, and she taken to the US air base medical unit and discharged. B then suffered a seizure which lead to her eventually being scanned at Addenbrookes, where healing injuries - fractures to her wrists and spine (undated) - were also discovered.
Care proceedings were commenced and on 15th May 2025 both children were taken into foster care. On 25th June 2025, they were returned to their parents care under the supervision of their paternal grandfather and aunt, subject to an ISO. Throughout proceedings the court was assisted in USA family law matters by a USA Department of Justice Civil Attache.
In a letter dated 30th June 2025, the US Embassy pointed out that adjudications on child custody are as a matter of constitutional law reserved to the States. The letter said the “federal government has no direct role in these matters, and principles of state sovereignty preclude acceptance of jurisdiction by the United States on behalf of the courts of a state”.
At para 15 of the judgement, 17[1] ‘one liner’ facts were agreed between all parties, ending with ‘B’s residence followed that of her parents’. The parents argued that any measures taken by this court should be limited to urgent or provisional measures and not extend to holding fact finding or welfare hearings.
At an early stage the parents raised habitual residence and forum conveniens. It was agreed that B had lost any Bulgarian connection.
The parents contended that if the court either found habitual residence in this jurisdiction or no habitual residence, either of which, would give a primary welfare jurisdiction to the courts of England and Wales; this court could decline to exercise jurisdiction and stay the proceedings by applying the forum conveniens principles.
‘Snippets’ from Her Ladyship’s judgement:
- The basis of jurisdiction is a child’s habitual residence pursuant to Article 5 of the 1996 Hague Convention.
- The law on habitual residence is well known and has been considered in a number of cases including in five Supreme Court authorities.
- The question for the court is whether there is ‘some degree of integration’ by the child concerned in a social and family environment in the UK. This is an issue of fact depending on a number of factors.
- If the court decides there is jurisdiction then the second argument raised by the parents was that of forum conveniens. The principles to apply are drawn from the case of Spiliada Maritime Corporation v Consulex [1997] AC 460
The judge decided there was habitual residence in England & Wales which was the right forum conveniens for (inter alia) the following reasons:
- The family home is in an East Anglia town near to the base
- Neither of the parents have any current connection with a particular State in the US although their extended family live in the US, in different states
- The judge did not accept that for the last seven years, the family had had no habitual residence; and stated ‘if that were the case, and the 1996 Hague Convention did not apply then jurisdiction would be determined on the basis of presence, in accordance with section 2(1)(b)(ii) of the Family Law Act 1986 applied to public law proceedings by Re R (Care Orders: Jurisdiction) [1995] 1 FLR 711 and Re M (Care Orders: Jurisdiction) [1997] Fam 67’
- The airbase did not provide for their every need eg Addenbrook
- The RAF base which is leased to the USAF is not a sovereign airbase, no US courts on the airbase
- When the children were removed to English foster carers, the airbase did not attempt to step in and claim jurisdiction
- A’s physical environment is the UK. He will be driven to school on British roads and days out will be to places in the UK
The judge sealed her decision on habitual residence by saying ‘I do not accept that any child living in this country for a substantial period of time could have either no habitual residence or a habitual residence in another country in these circumstances. The community the child lives among is based in this country. The family is not living on a sovereign airbase’.
The decision of the Court of Appeal in Re F (A Child) (Habitual Residence) [2025] EWCA Civ 911[2] was handed down during this case but it did not alter the judges determination.
As to forum conveniens the judge decided:
- The events which gave rise to the application for an interim care order arose in this country in the family’s home in a town in East Anglia.
- The clinicians who diagnosed her are all based in English hospitals and may well have had to give evidence had there been a contested hearing. The social workers and guardian were all based here too
- I find that the children are habitually resident here and that the US is not the forum conveniens.
PS – The family returned to the United States in early August 2025 with the agreement of the parties under the existing interim orders. The authorities in the United States were made aware of the family and were going to provide the necessary support. In the circumstances it was appropriate for the local authority’s application to be withdrawn.
Issue
Was F, a child, habitually resident in England and Wales at the relevant time such that the father’s retention of F in this jurisdiction was wrongful?
Facts
The Appellant father and the Respondent mother have a child, F, who was born in March 2017. The Appellant is a dual British and Ecuadorian national. The Respondent is a Colombian national. The Appellant and the Respondent separated in 2018. F had always lived in Colombia until she first travelled with the Appellant to England in December 2023 for the purpose of an agreed stay, with a stipulated return date of 6 April 2024. While in England, the Appellant stayed with his parents, along with F.
In January 2024, the Respondent travelled to England and spent time with F. The Respondent returned to Colombia on 16 April 2024 due to work commitments. She returned without F, whose passports were unavailable, as an application had been made for F to obtain a UK passport. At least until the end of April 2024, the Appellant continued telling the Respondent that he would return to Colombia with F, which he did not do. By late May 2024, the Appellant shared with the Respondent his plans of staying in the UK with F.
The Respondent eventually initiated proceedings for F’s return to Colombia pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the 1980 Convention”). The High Court found that the Appellant had wrongfully retained F in England on 30 May 2024 because, contrary to the parties’ agreement, the Appellant unilaterally decided that F should stay in England and not return to Colombia. The High Court found also that F was, at that time, habitually resident in England and so the 1980 Convention did not apply. Accordingly, no return order could be made.
On appeal, the Court of Appeal allowed the appeal, finding that F was not habitually resident in England at the end of May 2024. It considered that F was habitually resident in Colombia at the relevant date. The Appellant now appeals to the Supreme Court. Leave was refused.
