NORFOLK COUNTY COUNCIL v YY (mother)

These are care proceedings brought by Norfolk County Council (“NCC”) in relation to AA, a boy, born in 2013 and BB, a girl, born in 2023. The parents and AA are US citizens who have lived in East Anglia for about seven years. BB was adopted from Bulgaria and arrived in the UK on 11^th March 2025.

The American parents both worked on a RAF airbase which is leased to the United States Air Force (“USAF”). AA, aged 12, is at school on the base.

BB suffered a serious head injury and on 15^th May 2025 both children were taken into care. On 23^rd May 2025, AA was returned to live with the parents under the supervision of the paternal grandfather and aunt with an interim supervision order to NCC on 9^th June 2025 BB was returned home, and was then safeguarded under an interim care order.

On 25^th June 2025, with the agreement of the parties, I replaced the interim care order with an interim supervision order as the former was no longer necessary.

BB, aged two, was born in Bulgaria. The application for BB’s US citizenship had started on 9^th October 2024. On 24^th February 2025, the parents and AA collected BB in Bulgaria. They then stayed for seven days. On 2^nd March 2025, they flew into London and the next day went to the United States to start the naturalisation process. Whilst there they stayed with the paternal grandfather and his wife. The respondents do not have their own home in the United States. They flew back to London arriving on 11^th March 2025.

On 20^th April 2025, the mother said that BB had had a fall backwards in the bathroom and assumed she had hit her head. She took her to the emergency room (“ER”) at the USAF base. BB was observed for a few hours and then returned home.

On 5^th May 2025, BB had had flu-like symptoms. The ER doctor on the base had said it was probably a febrile seizure. BB then had more seizures and was taken back to the ER and then to a local, off-base English hospital, by ambulance. There a CT scan showed a bleed and fluid on her brain and she was transferred to Addenbrookes by ambulance for emergency surgery.

A skeletal survey of BB was conducted at Addenbrookes. As well as suffering a right subdural haematoma, the scan showed BB had injuries including healing fractures to both wrists and a spinal fracture. The age of the injuries (save for the head injury) was not clear.

Care proceedings were initiated by NCC, on 15^th May 2025. The US embassy and USAF were informed of the proceedings and I was grateful for the assistance I received from the embassy with a member of the diplomatic staff, the Department of Justice Civil Attache, attending each hearing which facilitated obtaining information about family law matters in the US.

In a letter dated 30^th 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”.

The diplomat was able to say that in certain circumstances a Florida court may have jurisdiction if Florida was the more appropriate forum and another court had declined jurisdiction and at least one parent had a significant connection with the State of Florida. A Florida court “may not” exercise jurisdiction if proceedings had been commenced in a court in another state (it would apply to the court in this country) having jurisdiction, unless the proceedings had been terminated or stayed because a Florida court is a more convenient forum.

At an early stage in the proceedings, the parents raised the question of habitual residence and forum conveniens. This was listed for argument on 2^nd July 2025, when I gave a very short decision, ruling that the children were habitually resident in this country and that England and Wales was the forum conveniens.

Since that decision, with the permission of the court and the agreement of the parties, the family had gone to the father’s new posting in the US. There was going to be safeguarding measures taken on the airbase to ensure that the children are safeguarded appropriately. On 10^th September 2025, NCC withdrew their application for a care order.

The parents’ arguments about the issue of habitual residence and forum were set out by Mr Barnes on behalf of the second respondent father and Mr Little for the first respondent mother. Their applications and arguments were opposed by Ms Reed for NCC and Ms Mitchell, in particular, who was for the children’s guardian.

The following facts were agreed:

In summary, 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. Their position was that the parents and AA were habitually resident in the US, whilst BB’s habitual residence followed her parents’.

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.

The arguments against the habitual residence argument raised by the parents were that AA had lived in East Anglia for seven years with his parents. He had a sufficient degree of social and environmental integration even if his life was interwoven with US military life on the USAF base. BB having joined the family more recently was nevertheless integrated with her family in East Anglia. It was agreed that BB had lost her habitual residence in Bulgaria.

Ms Mitchell for the guardian reminded the court that habitual residence is fact specific focussed on the situation of the child although the purposes of the parents are relevant factors to be considered. She accepted that the duration of the residence was not a pivotal factor but contended that AA’s life was not confined exclusively to the base.

BB, Ms Mitchell argued, had only a slight connection to the US. She had visited the US just the once when she had stayed with the paternal grandparents. The reality of her life was rooted in this jurisdiction.

Ms Mitchell contended that the children, particularly AA, would both have developed knowledge of life in England by virtue of their presence. When the children go to the US with their parents in the summer, they are not going to the extended family or a home of their own but to a posting.

The basis of jurisdiction is a child’s habitual residence pursuant to Article 5 of the 1996 Hague Convention. Although the US is a signatory to the 1996 Hague Convention, it has not ratified it. Jurisdiction through habitual residence (or a finding of no habitual residence) applies in public law proceedings and is a matter for the court to be determined at the date of the hearing.

If AA and BB were habitually resident in England and Wales, then the courts here would have a primary jurisdiction on the basis of Article 5. If the children were habitually resident in a country other than the UK, then this court would not have jurisdiction over them save under Articles 11 and 12 of the Convention which provides for a jurisdiction to take measures of protection when the child is present and it is a case of urgency. These lapse once measures are taken by the other non-Contracting State where the child is habitually resident.

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 argument that it is significant that the father’s posting is temporary and that he has no choice about where he goes is not one I can agree with. After a number of years and a home in East Anglia, it did not seem temporary to me. That argument did not seem to me to override the one that the family has no home other than the one in an East Anglian town close to the USAF airbase.

The family is not habitually resident in any part of the US. At the time of the hearing, neither of the parents have any current connection with a particular State in the US although their extended family live in the US, from what I gather, in different states.

I do not accept that for the last seven years, the family had had no habitual residence; 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.

I accepted that the family’s life in this country revolved around the airbase but it did not provide for their every need. I noted that when urgent medical treatment was needed, such as it was in the case of BB, the parents turned to the NHS albeit under a separate arrangement for those employed by the airbase. BB was taken to a local hospital before being taken to Addenbrookes.

The RAF base which is leased to the USAF is not a sovereign airbase and so although the military police will have a criminal jurisdiction, I have not been told that there are any US civil courts or family courts on the airbase.

If the only jurisdiction that could be exercised was under Articles 11 or 12 of the 1996 Hague Convention, that would mean that other than a very short term protection in a case of urgency, the children could not be protected. In those circumstances it would be easy to see that their safety would fall between two jurisdictions.

I noted that when removal of the children occurred in this case, they were removed to English foster carers, the airbase did not attempt to step in and claim jurisdiction. I noted that although the embassy was involved in the proceedings, their representative was careful not to present any positive position in relation to jurisdiction.

In terms of AA, he does not attend a British school but one on the airbase. His physical environment is the UK. He will have to drive to school on British roads and if the children go off on days out from school it will be to places in the UK. The parents said their shopping is done on the base, but, and I accept this is an assumption on my part, their socialising is likely to be with other families on and off the base. This would have been taking place over the many years they were here.

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.

I accept that the family has extended family in various US States but they have no particular connection in one state over another. They have no home in the US and go where they are sent by the US Defence Department. The postings are clearly lengthy and families will put down roots in any jurisdiction they spend such time in. I find the parents have habitual residence in this jurisdiction despite their substantial connection with the USAF base.

Were this court to find that AA or BB were not habitually resident here, then there would be no protection afforded to them. They would not come under the protection of the family courts in this country after any urgent steps that might need to be taken and with no base in the US or anywhere else, they would remain unprotected.

The intention of the parents, to leave the country in August 2025 when the father is posted to the US, does not override the objective identification of where the parents are habitually resident, where AA has resided and where BB now resides.

As a matter of fact, I find that East Anglia is the place which reflects some degree of integration by AA in a social and family environment. AA’s many years in this country shows a substantial durable connection to the UK even if his daily life is conducted on the airbase. After submissions were made on 2^nd July 2025, the decision of the Court of Appeal in Re F (A Child) (Habitual Residence) [2025] EWCA Civ 911 was handed down. This decision did not alter my determination.

BB is in a different position to AA as she has recently been adopted by the family. I accept that BB has a new connection to this country. She left Bulgaria on 2^nd March 2025 before going to the US for a week and coming home to England on 11^th March 2025.

None of the parties seek to argue that BB retains her habitual residence in Bulgaria. By her adoption, it was intended that she would live with her new family initially in England and thereafter wherever they were based. She has been adopted by American parents who are habitually resident in the UK.

I find that at her age and in her circumstances, her habitual residence reflects the position of the parents.

Mr Barnes argued persuasively that the UK was not the forum conveniens but I could not accept that contention. 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. BB went to the ER on the base but her problems were such that she had to go into first one and then a second English hospital.

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.

Bearing in mind that the children’s best interests are an important consideration, and that it was for the parents to establish that a stay was appropriate, this was clearly not a case which could be more suitably and justly or appropriately tried in the US. The natural forum is England and Wales. The forum conveniens is in England and Wales and not another jurisdiction.

I find that the children are habitually resident here and that the US is not the forum conveniens.