KH v MB

Habitual residence is determined by a child-focused global assessment of the child’s actual integration into social and family environments. Parental intention is relevant but not determinative. A short stay may be insufficient where the surrounding circumstances show a temporary arrangement and weak integration, even if the child is physically present in the jurisdiction.

A wrongful removal or separation from a parent does not automatically require summary return under the parens patriae jurisdiction. The court must make a swift, realistic and unsentimental assessment of whether the circumstances are sufficiently compelling to make return required or necessary. The child’s welfare, rather than punishment of the abducting parent, is the focus.

The mother applied under the inherent jurisdiction for the return of her young son, L, from Algeria to England and Wales. The father had removed L from England to Algeria without the mother’s consent in March 2022. Algeria was not a party to the 1996 Hague Convention or the 1980 Hague Convention.

The central issues were whether L was habitually resident in England and Wales when removed, whether the court retained jurisdiction, and whether the mother could invoke the parens patriae jurisdiction as L was a British citizen. The court also considered whether return was required or necessary despite L’s subsequent integration into life in Algeria.

1. Habitual residence. The relevant times for habitual residence were the commencement of proceedings and the final substantive hearing, applying Re London Borough of Hackney v P and Others [2023] EWCA Civ 1213. The court applied a child-centred, factual and global assessment. Some degree of integration in a social and family environment is a useful summary of the approach, not a substitute for considering all relevant factors.
2. L was habitually resident in Morocco when removed from England. His stay in England had been planned as temporary. The parents knew that the visas would expire, the father was selling his English house, no English accommodation had been secured, and the family had planned to relocate. L’s social integration in England was slight, whereas he had been deeply integrated into stable family and social life in Morocco.
3. L subsequently lost his habitual residence in Morocco and acquired habitual residence in Algeria. His complete separation from his mother and Moroccan family, full-time nursery attendance, new family relationships, language development and stable life in Algeria established the requisite integration, probably by June 2022.
4. Parens patriae jurisdiction. As a British citizen, L could invoke the jurisdiction. The mother’s application fell within section 1(1)(d) of the Family Law Act 1986. The threshold was whether circumstances were sufficiently compelling to make exercise of the jurisdiction required or necessary. That threshold was higher than the child’s best interests alone and guarded against circumventing the statutory scheme.
5. Abduction and separation from a parent did not mandate return. The court’s focus was L’s welfare, not punishment or restoration of an automatic status quo. Here, however, L was suffering present and continuing harm from the eradication of his relationship with his mother and maternal family. The mother had no realistic prospect of obtaining effective relief in Algeria because, even if she obtained care of L there, she could not leave Algeria without the father’s consent.
6. Balancing L’s settled life in Algeria against the secure accommodation and support available in England, the court concluded that the upheaval of return pending welfare proceedings was outweighed by the identified harms. A return order was therefore necessary and required. The order was made, with practical arrangements and directions to be addressed if not agreed.