In the Matter of KL (A Child)

Habitual residence is a factual question centred on the child’s integration in a social and family environment. Parental intention and the precariousness of a stay are relevant, but neither the absence of shared intention nor a pending appeal against a foreign return order prevents a change of habitual residence as a matter of law.

Where the Hague Convention on the Civil Aspects of International Child Abduction does not require return, article 18 preserves the High Court’s inherent jurisdiction. The child’s welfare remains paramount, but a full welfare inquiry is not invariably required. The court may order prompt return so that a competent foreign court determines the long-term dispute, giving proper weight to international comity, protective undertakings and the child’s relationship with both parents.

K was born in Texas but had lived at different times in Texas and England. A Texas custody order placed him with his father. The mother later obtained a United States federal order under the Hague Convention on the Civil Aspects of International Child Abduction and brought K to England. That order was subsequently vacated on appeal, and the United States District Court ordered K’s return.

The father sought K’s return from England. His first case, that the appellate decision had retrospectively made the original removal wrongful, failed and permission for a further appeal was refused. His second case alleged wrongful retention after the later United States order. Alternatively, he sought return under the High Court’s inherent jurisdiction.

The High Court dismissed both applications in [2013] EWHC 49 (Fam). The Court of Appeal dismissed the father’s appeal in [2013] EWCA Civ 865. The issues before the Supreme Court were whether K remained habitually resident in Texas at the relevant time and, if not, whether his return should nevertheless be ordered under the inherent jurisdiction.

1. Appeal allowed unanimously. Lady Hale delivered the judgment, with which Lord Neuberger, Lord Wilson, Lord Hughes and Lord Hodge agreed. The father failed on the Convention ground because K had become habitually resident in England and Wales. The court nevertheless ordered K’s immediate return to San Antonio under the inherent jurisdiction.

2. Habitual residence under article 3 of the Hague Convention on the Civil Aspects of International Child Abduction is a question of fact. The applicable concept is that explained in A v A and another (Children: Habitual Residence) [2013] UKSC 60 and the relevant CJEU authorities. It identifies the place reflecting some degree of the child’s integration in a social and family environment. The inquiry must not be overlaid with legal rules that produce a result different from the factual assessment.

3. Parental intentions remain relevant insofar as they concern the reasons for the move and the intended character of the stay. They are factors in deciding whether the move has sufficient stability. Shared intention is not a legal prerequisite, particularly where a court order permits a permanent or long-term move. Equally, residence under an order that remains subject to appeal may be precarious, but that circumstance does not suspend the possible acquisition of a new habitual residence.

4. K had lived in England for eleven and a half months before the United States appellate decision. His mother regarded the move as a permanent return home, K had previously lived here, and he had become integrated into a social and family environment. Those considerations outweighed the precariousness of the underlying order and the father’s desire that K return. The judge was therefore entitled to find that K was habitually resident in England and Wales by the relevant date.

5. Article 18 of the Convention preserves the power to order return outside the Convention. Sections 2(3) and 3(1) of the Family Law Act 1986 supplied the jurisdictional basis, while section 1(1) of the Children Act 1989 made welfare paramount. Paramountcy does not invariably require a full welfare inquiry. The court may order prompt return and should form its own welfare judgment while giving appropriate weight to a competent foreign judgment.

6. The lower courts had asked whether an immediate move from the mother’s care to the father’s care was in K’s interests. The father instead proposed a protected return with the mother, followed by an early Texas determination of long-term welfare. The correct question was whether K’s interests were better served by deciding the dispute in England or in Texas. Texas offered the best prospect of restoring his relationship with both parents and his country of birth. No significant harm from the proposed return was established.

7. K was ordered to return to San Antonio forthwith on the father’s undertakings. The order would stand even if the mother elected not to accompany him.

1. United Kingdom Supreme Court: In [2013] UKSC 75, unanimously allowed the appeal on the inherent-jurisdiction ground and ordered the child’s return. It rejected the contention that return was required under the Convention.
2. Court of Appeal: In [2013] EWCA Civ 865, dismissed the father’s appeal from the High Court.
3. High Court: In [2013] EWHC 49 (Fam), Sir Peter Singer dismissed the father’s Convention and inherent-jurisdiction applications.