KH v MB

These proceedings concern one child, a boy born on 23 November 2019 to whom I shall refer as L. By a C66 application for an inherent jurisdiction order dated 7 March 2023, the applicant (“the mother”) seeks L’s summary return to England and to her sole care.

On the night of 30 March 2022, the respondent (“the father”) without the mother’s knowledge or consent, took L from the house in North West England where the three of them were living, put L in his car, drove to the airport, and flew with him to Algeria via France taking L to L’s father’s mother’s apartment. The mother was in the house at the time and her anguish when she came downstairs and realised that L had gone can scarcely be imagined. L has been living in the apartment in Algeria with his paternal grandmother ever since. (There is no criticism of the mother in relation to the elapse of almost a year between L’s wrongful removal from England and issue of these. proceedings. That elapse of time was caused by a delay in her receiving appropriate legal advice).

After a week in Algeria, the father flew back to England and police met him at the airport. He has since been arrested and his passports seized. He is still on bail subject to conditions. The father has no intention of agreeing to or facilitating L’s removal from Algeria, a country which is not a signatory to either the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”) or the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

The mother was born in Morocco in 1995 and is a Moroccan national. The father was born in 1984, is Algerian by birth, became a British citizen in around 2016 and has an Algerian and a British passport. Both parents speak Arabic and the father also speaks English. L was born in England. He has an Algerian passport. The Home Office has provided a letter stating that the Secretary of State is of the opinion that L is a British citizen. That opinion is not challenged and I proceed on the basis that L has dual Algerian and British nationality.

This hearing came before me in October 2023. I adjourned it because although I had statements from each party dealing in detail with their relationship history, I lacked the information about L that the issue of jurisdiction required. I directed both parties to file further statements about L and gave a clear indication of the topics to be addressed. The statements and additional documents duly filed were an improvement but it remained the case that detail about L’s day to day life in Morocco in particular, was only forthcoming during oral evidence. This case is not exceptional in that regard.

Jurisdiction is the first matter that I must determine. At the beginning of the final hearing in October which I adjourned, counsel for the mother informed the court that she did not, in addition to habitual residence, pursue the parens patriae route to jurisdiction. Just before the matter came back to court in November, the mother gave notice that she did. The re-introduction of reliance on the inherent jurisdiction caused some procedural difficulty as the father had an incomplete understanding of how that case was put. I directed that there be sequential service of further written submissions after the end of the hearing.

At both hearings, the mother was represented by Jacqueline Renton, counsel, and the father by Mavis Amonoo-Acquah, counsel. I am grateful to both for their industry, and their excellent oral and written submissions.

Between birth in November 2019 and 30 March 2022, L’s living arrangements were as follows:

The mother’s case is that L was habitually resident in England between birth and age 3 months and that he has remained habitually resident in this jurisdiction ever since. Alternatively, if he became habitually resident in Morrocco, he quickly re-acquired habitual residence in England on returning in January 2022. He has not since become habitually resident in Algeria.

The father agrees that L was habitually resident in England between birth and age 3 months. He submits that L became habitually resident in Morrocco in 2020 or 2021, and did not re-acquire habitual residence in England during the 10 weeks he lived here in early 2022. L became habitually resident in Algeria before 7 March 2023 or alternatively between March and August 2023.

I heard interpreted oral evidence from the mother who attended remotely. The father gave evidence in person and did not require an interpreter.I read position statements on behalf of each party and several statements from each with exhibits (the bundle was over 1,000 pages). The mother adduced an expert report on Algerian law, a separate bundle of police records, and her GP records all of which I read. The father provided me with videos of L in Algeria.

After L’s removal the mother (assisted by an interpreter) was interviewed by the police on two separate occasions for around 2 hours each time. The interviews were on 4 and 7 April 2022 and what she said was contemporaneously recorded on a police computer log. I refer to these accounts as “the first police interview” and “the second police interview”.

I have woven my factual findings, so far as they are relevant to jurisdiction, into the following account of events. The mother makes allegations of domestic abuse including coercive and controlling behaviour which, she says, started shortly after she arrived in England in November 2019. Where relevant to the jurisdictional issues before me, I reach findings on specific events. But I make no findings about the overarching allegation of consistent frequent abusive behaviour and control. Although I have preferred the father’s evidence on a number on discrete matters that does not, and should not be taken to mean, that the allegations of abuse are unreliable.

The mother was born in Morocco and married there at the age of 16. Within a year she gave birth to a son, O (born in April 2012). She divorced in 2014. In 2017 she made a decision to leave O in the care of her mother in Morrocco on a long term basis. She travelled to Germany on a tourist visa (which it seems expired whilst she was still living there) and stayed with her sister in Potsdam.

In December 2017, the mother and father were introduced by a mutual friend and talked online. The father went to meet her in Germany in March 2018 and they became engaged.

In around April 2018 the mother moved to Berlin where she claimed asylum and was given accommodation and a residence card which was valid from May 2018 to 17 January 2020. She says (and I accept) that it was the father’s idea to make the asylum application. His thinking was, she says, that if she had a German residence card she would be able to move freely between Germany and the UK, both countries then being part of the European Union. On 26 June 2018 the mother and father married according to Shariah law in Berlin.

The father produces a twenty page decision of the Federal Office for Migration and Refugees rejecting the application. It contains a summary and a lengthy account of the mother’s interview by an immigration official in July 2018. The basis of her application was that she was the victim of violence, including serious sexual violence, at the hands of her ex-husband who was pursuing her so that it was unsafe for her to return to Morocco. Further documents provided by the father show that she appealed, this time citing medical grounds: depression and PTSD. It seems that the appeal was successful and in November 2018 she began to receive benefits. One of the mother’s current concerns is that if she were to commence proceedings in Algeria for care and custody of L, the father would use her mental history to argue that she is an unfit parent.

After they married, the mother continued to live in Berlin and the father in England. He worked as a domestic HGV driver and would fly over to see her when he could. The mother says this was a very happy time: they spoke every day and “we were very much in love.” The father was caring and provided for her financially by giving her one of his bank cards which she could use when he was not there. She said: “We were happy with our arrangement and in our relationship.” However, in the first police interview she told the interviewing officer that, “The relationship was never really ok. He was always swearing at me, bullying me.”

By March 2019, the mother was pregnant with L. She continued to live in Germany and received all her antenatal care there. She says that when she was about six months pregnant, the father started pushing for her to move to England and for their baby to be born there. She says he told her that they would live and settle together as a family in England, and he would help her bring O over from Morocco so that the four of them could be a family. In the same statement, the mother says that her German residence permit expired in January 2020 and she wanted to give birth there: “I knew that once I left Germany I would not be able to go back there which also made me very reluctant to come to the UK.”

The father’s account is different. He wanted his name on the birth certificate. On legal advice provided in Germany he obtained a document which would have enabled that to happen. However, the mother then withdrew her consent and said she would only agree to him being named on the certificate if he brought her to the UK to give birth. He acceded to that. The father says that they never planned to settle in England permanently. The plan was always for them to live in Algeria. I note that in her first police interview, the mother said: “In 2019 he wanted me to go to Algeria.”

Over the years that followed, the parties never resolved this question of which country they should settle in, and it continued to trouble the relationship. I think it likely that the father wanted the baby to have dual British and Algerian citizenship, as he did, and later to be raised in Algeria, as he had been. The mother had no connection to the UK or Algeria and a lot to lose by leaving Germany. I think it likely (accepting that there are other possibilities) that there was a negotiation which resulted in an agreement that the baby would be born in England, and they would cross the bridge of where to live in the longer term later.

The father obtained a six month visa for the mother which was valid from 8 November 2019 to 8 May 2020 and those dates were stamped into her passport. He says that the mother was well aware that that this was a short-term visa which would not enable her to work, study, or have a bank account in England. I accept that evidence. The mother had been through an extensive immigration process in Germany and knew about visas and residence conditions.

On 9 November, when the mother was eight and a half months pregnant, they drove from Berlin to England. In a statement, the mother describes being stopped at the Eurotunnel border on the French side and detained for 5-6 hours during which time the father spoke to UK border staff and she was examined by a healthcare professional.

On arrival in England, they lived in the three bedroom house owned by the father. L was born in hospital at the end of November. After they went home, there were medical appointments on 2 and 5 December 2019 and 13 January 2020, the father interpreting at all of them. The January note records: Seen by health visitor Living space warm, clean and tidy. M and baby L well presented and relaxed in their home environment. Also “M appeared happy and relaxed caring for L at home today. M reports feeling more confident and is enjoying her time with L more.” The mother says that in due course, though she thought it too soon to travel, the father persuaded her that they should all go to Morocco to see her family there and introduce them to L.

The father says he booked flights for all three of them from England to Morocco in February, and from Morocco to Algeria in April doing so in the mother’s presence, and with her knowledge and agreement. This was in the context of her visa expiring on 8 May. He did not book any return flights to the UK for her and L because they would not be returning to the UK: they were going to Algeria to live there, and she knew and agreed to that. The mother says that she was not present when any flights were booked, she did not learn of the tickets of Algeria until weeks later, and there was never any plan to live in Algeria.

On 21 February 2020, all three flew to Morocco staying with L’s maternal grandmother in her flat. As planned, the father was there for three days before returning to England for work purposes. He says, and I accept, that at the time he was employed by a national haulage firm, contracted to work 45 hours a week, and had to return because he had no holiday left.

The Covid 19 pandemic then started to threaten international travel. The mother says she begged the father to come back and get her and L so that they could be reunited in England before the borders shut. She also says that when he left Morocco, the father took L’s passport and birth certificate with him with the result that she could not leave the country with L as she had no travel document for him.

The father denies this. He says he left L’s passport with the mother and she told him she lost it. He did not anticipate that the borders would be closed for so long and thought he would be able to fly back to Morocco in April so that they could all travel on to Algeria together as planned.

The Moroccan border shut, I was told, on 15 March 2020. The mother’s account is that afterwards, she telephoned the father to ask what she should do. She says he responded by saying that he did not want them back, he had installed spyware on her phone so he could listen in to her conversations, he was going to take his son to Algeria to live there, and he would have her killed. It was after this conversation, she says, that she found about the tickets to Algeria.

The mother produced a flight reservation document created by a travel agent for flights for herself and L from Tangier to Gatwick departing on 14 July 2020. She did not produce a purchase document or the tickets themselves. In cross examination she made the improbable suggestion that she thought the reservation document was the ticket. She also told the court she was able to reserve L’s ticket by showing the travel agent a photo of his passport on her phone. She says they went to the airport but were turned away as their visas had expired.

I set out these matters at some length because it is a significant part of the mother’s case that L retained his habitual residence in England and Wales throughout the time they were in Morocco because she was a stranded spouse within the meaning of Practice Direction 12J of the Family Proceedings Rules 2010, and the victim of deliberate transnational abandonment. I disagree. I do not find that the fact that she and L found themselves in Morocco rather than England after 15 March 2020 to be a result of a deliberate, premeditated decision by the father. At that time, the father very much wanted to live with his wife and son and would have avoided an enforced separation had he seen it coming.

For two reasons, I find that the father left L’s passport with the mother in Morocco when he returned to England at the end of February. I also accept his evidence that he left some cash with her. First, L’s current passport is dated April 2021. It is difficult to understand why he would have troubled to apply for a replacement if he was in possession of the original. Second, the mother’s evidence is that she saw L’s passport for the first time at Manchester airport on 21 February 2020, and the father kept it in his possession for the next three days and took it away with him. If that is right, there was no opportunity for her to take the picture of L’s passport on her phone which she had in July.

The parties agree that some point after it became clear that the pandemic had enforced a separation that was going to last months rather than weeks, they had a significant argument - probably about living in Algeria, which the mother refused to do - and the relationship ended. The father did not help them return to England after their visas expired in May 2020, not with the aim of stranding or abandoning the mother or L, but because they had decided to go their separate ways and were no longer a couple. The mother stopped the father’s stop telephone contact with L and he stopped sending her money.

The father made an application in the Moroccan courts for contact. The mother responded with a counterclaim for orders preventing the father from seeing L unless supervised on the ground that if unsupervised, there was a risk he would take L to Algeria. (In October 2021 the claim and counter-claim were dismissed and the parties ordered to bear their own costs.) In her April and August 2023 statements, the mother mischaracterises the father’s application as an attempt to strip her of her parental rights saying that the proceedings were “to take my son away from me”. The court documents she exhibits shows it was not.

At some point in the second half of 2021, the parents decided to think about resuming their relationship. In September, the father went to Tangier for about a week staying in a flat he rented. He and the mother sat down together and talked things through. They also had a sit down conversation with L’s maternal grandmother.

In oral evidence the father said that he was lonely in England where he had no family and fed up with doing nothing but working and going back to empty flat to “eat out of a tin”. He understood that the mother wanted to settle in Morocco because that was where O was, and he accepted that. He also accepted that she did not want to live in Algeria. He found Algeria and Morocco to be culturally similar and was content to live in either. He says that the mother imposed two conditions on their reconciliation: that they have a civil marriage in England, and that he buy a property in Morocco for them to live in. He agreed to both. He described all of them – the mother, her mother, O and L – going to see a flat together. He chose a place with CCTV and a security guard so that he could be sure L would be safe when he was not there. He produced a notarised sales agreement signed by the mother after he had returned to England.

The mother’s account is different. She says that having a civil marriage in England was the father’s idea. He wanted to buy a flat in Morocco as a commercial rental and showed her a flat online. She signed documents for him because he was not a Moroccan citizen and could not make the purchase without her help. Other than that, the flat was nothing to do with her. She vehemently disagrees that there was any shared intention to live in Morocco. She says that when they reconciled, it was on the basis that they would live in England permanently.

I prefer the father’s evidence. It fits with the contemporaneous documents and the fact that on 1 October 2021 he put his house in England up for sale. He would not have done that unless he believed that he and the mother were relocating to Morocco. He also applied for six month visas for the mother and L which were issued in December.

All of these matters concern L’s parents and their intentions whereas the focus, of course, should be on L’s situation. As I have observed, the mother’s statement evidence about his time in Morocco was thin and it was only in court that the picture of L’s day to day life was painted in. Throughout their time in Morocco the mother and L lived with her mother, her twin brothers aged around 40 (L’s uncles) and her son O. They were in a fourth floor flat of a block about half an hour’s drive from the coast. During lockdown they were only allowed to go outside once a day and there was social distancing.

In 2020, she started working three days a week as a dental nurse in a health centre. Her mother looked after L when she was out. She worked throughout 2020 and 2021. After Covid restrictions ended (in around December 2020), she, L and other family members would go out to restaurants, parks, the zoo, the children’s centre, and the supermarket. Sometimes they would give O a lift to school. At weekends they would drive to the seaside in a brother’s car and in the school holidays, they went there every day. Accessing healthcare was difficult because L did not have Moroccan papers (this was the reason she was trying to get back to England in July 2020) but she was able to fund private healthcare. L and O formed a lovely relationship and played together all the time.

On 23 January 2022 the mother and L arrived in England. Both parties agree that up until the end of March the father was working nights as a lorry driver. He says he was doing agency work at this time, leaving in the evening, coming home in the early morning, and sleeping in a separate room to the mother and L so as not to disturb them.

According to him, this was a happy time. He treated it as an extended holiday visit and though he was working nights, he took his wife and son on outings to see the local sites and different towns in England. The mother knew that the house was on the market and there were viewings whilst she was living there. In oral evidence he said that he was out when one of them took place and the mother let the prospective buyers in. Aware that the mother and L had to leave England before their visas expired in June, they had agreed to go back to Morocco before the end of Ramadan which he recalls was towards the end of April 2022. I accept this evidence.

The mother says that as soon as she and L re-joined the father in England, he resumed his abuse of her. She never went out unless it was with the father. He was mostly out at work or sleeping and she knew no-one so it was lonely. She was inside with L all the time cooking, cleaning, or playing with him. She used the house Wi-Fi to call Morocco.

In oral evidence she said she had no idea that the house was on the market. As she didn’t go out, she never saw the “For Sale” sign outside, didn’t see it from a window, and wouldn’t have understood what it said even if she did. I cannot accept this evidence. On 1 April 2022 the mother spent two hours with a social worker. The police computer record made at 4.30pm that day records the social worker telling the police that the mother had said that the father “owns property and is coming back to the UK to sell.” It is quite clear that the father did not conceal from her the fact that he was selling the house and that fits with a planned move to Morocco.

As to L, the mother seemed to suggest that after a few weeks he was enrolled at nursery and attended Monday to Friday. The father says they took him to a Sure Start centre about three times. On the last occasion they left him there to do some shopping and L cried so they had to go back and get him and did not take him again. There was no nursery. I prefer the father’s evidence.

The father re-registered the mother at the previous GP surgery. A heath visitor made a home visit on 16 February 2022 when L and both parents were present. Some words in the computer record are redacted but with the parties, it was possible to make an informed guess (the inferred words are in square brackets). The health visitor noted amongst other matters:

“Exploring feelings Warm, loving interaction observed between L and both his mother and father.

Assessment of parenting capacity M recently moved back to the UK from Morocco with L. they have been in the UK for 1 month and she is starting to find her feet. M is [complaining] of being quite isolated as they have no family in the UK, her husband works as a lorry driver and she does not speak English. M was quite relaxed during the visit and was laughing with her [husband] at times. She states that she is very happy to be in the UK.

Interpersonal relationship observations L mainly gravitated towards his [father] during the visit however I could see M looking at him warmly and responding to him positively”.

On 9 March 2022 they were married at the registry office. On 26 March 2022, the father flew to Tangier to execute the deed of purchase on the flat; the deed records that he did so at 9.30am on 29 March. He flew back to England the following afternoon arriving home late in the evening.

The parties agree that when he got back they had a huge argument: the father wanted the mother and L to move to the flat in Morocco and the mother refused to go. In her first police interview, the mother said: “he went on his own and bought a house. According to him he wanted to steal money from here and go and settle down in Morocco. I did not want to go. I refused to let me and my son go back to Morocco. It was his idea. His whole plan was to take my son to Algeria and then kill me.” In a statement he wrote himself dated 27 March 2023, the father says: “she was shouting for no reason and she said she is not going back to Morocco and she is leaving and taking my son.”. The mother says during the row the father slapped her and it was while she was upstairs recovering that he bundled L up and drove off with him to the airport.

On 1 April 2022, almost immediately after arriving, the father enrolled L in a nursery. L has attended there full time, five days a week ever since, the father paying the fees. The nursery provides a range of activities and outings and L has friends there. He lives with his grandmother and other family members in the grandmother’s flat. Weekends are spent with family and he sometimes stays overnight with an aunt and plays with cousins. His uncle also takes him out: sometimes they go to the mosque on Fridays.

There is a video of L at nursery. It shows a well-dressed, well presented, healthy seeming little boy seated at a table on which are pictures and pages with large print words. He is with a nursery worker or teacher and they are the only two people in view. L is clearly relaxed and at ease, he smiles at and engages well with the teacher and makes good eye contact with her. At one point we see him taking up a pencil in his right hand and drawing on a page which he steadies with his left hand. He appears to have a good grip and appropriate fine motor skills. There is no indication of a problem with either wrist (the mother produces a photo of him in Algeria with what she says is a swollen wrist following an accident) so far as one can tell from this brief video. He is not wearing glasses and again, so far as one can tell, seems to have no difficulties with vision (the mother reports a history of eye problems). L is said to be learning Arabic and has started to learn a bit of French. He learns other subjects too at an age-appropriate level.

There are also videos at L at home, where he is rather captivated by a cartoon on the tv, and of the flat where he lives. The video of the flat is empty of people and shows a spacious, clean, appropriately furnished apartment.

I am satisfied that in Algeria, L is safe, healthy, well educated, suitably accommodated, surrounded by members of his paternal family, and in regular audio-visual contact with his father via telephone. He is also completely cut off from his mother.

When cross examined, the father was initially unwilling to speculate about whether L loved his mother or had a strong bond with her, eventually accepting that he did. He said that he had seen no impact on L of separation from his mother. He had told his family in Algeria not to say anything to L about her. He said that L was getting on with his life and maybe did not understand the meaning of mother. He accepted that L would “get affected somehow” if he never saw her again and “probably he will be very sad.” He had not thought through what he would say when L started asking questions about where his mother was or why he didn’t have a mother but if, at an appropriate age, L wanted to look for his mother, he would assist him with that.

The mother produced an English transcript of an audio recording of a male voice speaking to L’s maternal grandmother in Arabic making statements such as: “I am his only parent. He doesn’t have a mother. His mother died a long time ago. She doesn’t exist anymore. I will give him a death certificate if I must.” In cross examination, the father denied ever calling L’s grandmother. He said he would have to listen to the audio before he could say if the voice was his (something he had had ample opportunity to do) but suggested that the audio recording must have been made by someone else. This was not a credible suggestion.

He told the court that he plans to sell the flat in Morocco, move to Algeria, and buy somewhere to live with L. He was adamant that he does not wish L to have a British passport. He was equally clear that will not facilitate L coming to England or bring him here himself even if ordered to do so. On the other hand, if the mother wished to travel to Algeria, which he thought it would be easy for her to do, they could come to an arrangement.

At the October hearing, the mother made an unopposed application for daily video contact with L for a maximum of 40 minutes. The father readily agreed to supply a phone and identified family members in Algeria willing to facilitate the calls, ensure that the tv was switched off, and help L to understand that this was his mother, and it was important that he focus.

I was told in November that there had been almost no meaningful contact. Around three short attempts had been made (the mother reported seeing L seated on a brand new Algerian flag) during which L did not concentrate, and said strange things before running off. Twice at the end of the court day, with the kind assistance of court staff, we stayed late so that contact could take place under the remote eye of the court. This was only minimally more effective. Later attempts have not born fruit with the mother and grandmother making cross allegations as to why not. That is not a matter for me but I observe that it is easy to understand why this very young boy is struggling, or not motivated, to focus on telephone calls with a person who is, now, a stranger to him. I asked if the nursery might facilitate contact there at the end of the day. The mother.

produced Arabic texts in which she said the nursery agreed to assist. In response, the father produced a letter from the nursery in English saying that it would not.

Lastly, in answer to the mother’s request to understand why, when she spoke to him, L asked why she was calling him L, the paternal family confirmed that they sometimes call L by a different name.

Mr Ian Edge is an expert on Algerian law. In his opinion, L would be treated by the Algerian courts as subject to the jurisdiction of Algeria in any proceedings there about L’s care and custody. The salient points of his report are:

Whether married or divorced, both parents have guardianship over their children and both must be involved in all major decisions concerning them;

Where a child has dual nationality, Algerian nationality takes precedence and where one parent is an Algerian national and the other is not, the wishes of the Algerian parent will have priority;

It is unlikely that an Algerian court would consider it was in the best interests of an Algerian Muslim child to be brought up outside Algeria in a non-Muslim country;

It is “highly unlikely” that an Algerian court would accede to an application by a Moroccan mother to remove her Algerian son from Algeria if the father did not consent to that;

The courts in Algeria would not enforce an English court order on a family law matter over which they considered they had jurisdiction;

The Algerian courts would not consider themselves bound by any English Family court orders regarding L, and the process in Algeria for recognition and enforcement of foreign civil judgments is not used in family cases;

In this case, the only method by which an order for L’s return from Algeria to England made by this court could be effected in Algeria is the consent of the father.

Article 5 of the 1996 Convention states:

An unintended benefit of the October adjournment was that the Court of Appeal’s decision in Re London Borough of Hackney v P and Others (Jurisdiction: 1996 Hague Child Protection Convention) [2023] EWCA Civ 1213 (“Hackney v P”) was available when we resumed in November. That teaches (paragraphs 113 and 116) both that the relevant time at which habitual residence must be established is the date on which proceedings were commenced and that the court must retain jurisdiction at the date of the final substantive hearing.

The father does not dispute that the removal of L from England to Algeria was wrongful. Therefore, if L was not habitually resident in England and Wales on 7 March 2023 when proceedings were commenced, then Art 7(1) of the 1996 Convention is engaged. This says:

“(1)

In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State…”

The reference to first “the Contracting State” and then “another State” without, unusually, the 1996 Convention specifying whether the other state is contracting or non-contracting, has generated conflicting first instance judgments (some of which contain obiterdicta, the decision being arrived at for different reasons). In MZ v RZ [2021] EWHC 2490 (Fam) and  H v R the Embassy of the State of Libya [2022] EWHC 1073 (Fam), Peel J determined that Art 7(1) only applies where the wrongful removal of a child is from one contracting party to the 1996 Convention to another contracting party. In so finding, he agreed with Mostyn J’s interpretation, in SS v MCP (No.2) [2021] 4 FLR 140, of the CJEU’s judgment in SS v MCP (Case C-603/20 PPU) [2021] 2 FLR 297.

Other judges (AA v BB [2020] EWHC 2509 (Fam), FA v MA [2021] EWHC 3024 (Fam) [2022] 2 FLR 371 [28], and SA v AA [2023] EWHC 2016 (Fam)) have taken the view that the Court of Appeal’s decision in Re H [2014] EWCA Civ 1101 either does or may establish that Art 7(1) applies to all states, regardless of whether they have or have not signed the 1996 Convention.

At paragraph 117 of Hackney v P, Lord Justice Moylan said this in relation to the situation where jurisdiction under Art 5 of the 1996 Convention is lost during the course of proceedings because a child moves or otherwise loses the habitual residence they had at the start of proceedings:

“There is, however, a clear difference between a move to a Contracting State and a move to a non-Contracting State. In the former case, the other State acquires Article 5 jurisdiction. In the latter case, the other State does not. The consequence is that, in the former, the original State cannot retain jurisdiction by reference to domestic law, while in the latter case, it can. In my view, this is unlikely to cause difficulties if the child has moved from the State in which the proceedings have been taking place, because the court would be likely to have sanctioned the move and would have needed to consider the consequences of such a move, including as to jurisdiction and recognition/enforcement, before it was sanctioned. There may, of course, be more complex cases in which there has been a wrongful removal or retention but I do not propose to address what might happen in such a situation.”

In Re B (A Child: Custody Rights Habitual Residence) [2016] EWHC 2174, 4 WLR 156 EWHC 2174 paragraph 17, Hayden J summarised the principles to be drawn from five recent Supreme Court authorities (I have omitted the see-saw analogy pursuant to Re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105):

“i)

The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment (A v A, adopting the European test).

ii) The test is essentially a factual one which should not be overlaid with legal sub-rules or glosses.  It must be emphasised that the factual enquiry must be centredthroughout on the circumstances of the child's life that is most likely to illuminate his habitual residence (A v A, Re KL). 

iii) In common with the other rules of jurisdiction in Brussels IIR its meaning is 'shaped in the light of the best interests of the child, in particular on the criterion of proximity'. Proximity in this context means 'the practical connection between the child and the country concerned': A v A (para 80(ii)); Re B (para 42) applying Mercredi v Chaffe at para 46).

iv) It is possible for a parent unilaterally to cause a child to change habitual residence by removing the child to another jurisdiction without the consent of the other parent (Re R);

v) A child will usually but not necessarily have the same habitual residence as the parent(s) who care for him or her (Re LC).  The younger the child the more likely the proposition, however, this is not to eclipse the fact that the investigation is child focused.  It is the child's habitual residence which is in question and, it follows the child's integration which is under consideration. 

vi) Parental intention is relevant to the assessment, but not determinative (Re KL, Re R and Re B); 

vii) It will be highly unusual for a child to have no habitual residence. Usually a child lose a pre-existing habitual residence at the same time as gaining a new one (Re B); (emphasis added);

viii) In assessing whether a child has lost a pre-existing habitual residence and gained a new one, the court must weigh up the degree of connection which the child had with the state in which he resided before the move (Re B – see in particular the guidance at para 46);

ix) It is the stability of a child's residence as opposed to its permanence which is relevant, though this is qualitative and not quantitative, in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there (Re R and earlier in Re KL and Mercredi);

x) The relevant question is whether a child has achieved some degree of integration in social and family environment; it is not necessary for a child to be fully integrated before becoming habitually resident (Re R);

xi) The requisite degree of integration can, in certain circumstances, develop quite quickly (Art 9 of BIIR envisages within 3 months).  It is possible to acquire a new habitual residence in a single day (A v A; Re B).  In the latter case Lord Wilson referred (para 45) those 'first roots' which represent the requisite degree of integration and which a child will 'probably' put down 'quite quickly' following a move;

xii) Habitual residence was a question of fact focused upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It was the stability of the residence that was important, not whether it was of a permanent character. There was no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely (Re R). 

xiii) The structure of Brussels IIa, and particularly Recital 12 to the Regulation, demonstrates that it is in a child's best interests to have an habitual residence and accordingly that it would be highly unlikely, albeit possible (or, to use the term adopted in certain parts of the judgment, exceptional), for a child to have no habitual residence; As such, "if interpretation of the concept of habitual residence can reasonably yield both a conclusion that a child has an habitual residence and, alternatively, a conclusion that he lacks any habitual residence, the court should adopt the former" (Re B supra)”. 

 The following paragraphs of Re LC (Reunite: International Child Abduction Centre Intervening) [2014] UKSC 1 are of particular relevance to the facts of this case:

 “[59] The first principle is that habitual residence is a question of fact: has the residence of a particular person in a particular place acquired the necessary degree of stability (permanent is a word used in the English versions of the two CJEU judgments) to become habitual? It is not a matter of intention: one does not acquire a habitual residence merely by intending to do so; nor does one fail to acquire one merely by not intending to do so. …

[62] Clearly, therefore, this is a child-centred approach. It is the child’s habitual residence which is in question. It is the child’s integration which is under consideration. …The environment of an infant or very young child is (one hopes) a family environment and so determined by reference to the person with whom he lives. But once a child leaves the family environment and goes to school, his social world widens and there are more factors to be taken into account. ….

[63] The quality of a child’s stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then or even later. Of course there are many permutations in between, where a person may lose one habitual residence without gaining another.“ 

In Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA Civ 659 [41] and [45] Moylan LJ, having reviewed Hayden J’s list and other authorities, stated that the words “some degree of integration by the child in a social and family environment” are neither determinative of habitual residence nor a substitute for the required global analysis but a shorthand summary of the approach to be taken. The issue of habitual residence requires consideration of all relevant factors. Further, where a child might be said to have some degree of integration into more than one State, the court must consider the factors which connect the child to each State where they are alleged to be habitually resident.

In my judgment, the mother has not proved that on a balance of probabilities L was habitually resident in England and Wales when he was wrongfully removed on 30 March 2022. Given my finding that L was not habitually resident in England and Wales at the time of his wrongful removal (and my decision to exercise the parens patriae jurisdiction by making a return order), it is not necessary for me to decide whether Art 7(1) applies to Algeria.

I find that:

My reasons for finding that L’s residence in England and Wales was not habitual on 30 March 2022 and he remained habitually resident in Morocco are: