G (A Child) (Jurisdiction: Habitual Residence following Lawful Relocation), Re

A lawful relocation authorised by a court does not itself determine a child’s habitual residence. The court must undertake a global, fact-sensitive assessment of the child’s integration in the relevant social and family environment, focusing on the child’s circumstances at the relevant date.

For an adolescent, the child’s state of mind may be relevant, particularly where the relocation was materially different from that contemplated when permission was granted, the child’s established connections remain in the former state, and the child has not achieved stability or integration in the new state. A parent’s intention and the lawful nature of the move are relevant but not determinative.

The father obtained a consent order permitting permanent relocation to the USA with the parties’ two children. The USA refused the older child a visa, but the father nevertheless relocated with the younger child, G, in August 2024.

G, aged 14, repeatedly expressed a wish to return to England and Wales and remained deeply unsettled in the USA. The mother applied to amend the earlier order and sought G’s return. The Family Court dismissed the application for lack of jurisdiction, holding that G was almost certainly habitually resident in the USA.

The mother appealed. The central issue was whether G remained habitually resident in England and Wales on the date of the application.

1. Appeal allowed. The lower court had asked whether G was habitually resident in the USA at the time of its decision. The correct question was whether G retained habitual residence in England and Wales on 12 October 2024. The lower court had also failed to conduct the required global analysis.
2. Under the Family Law Act 1986 and article 5 of the 1996 Hague Convention, jurisdiction depended principally on G’s habitual residence. As the USA was not a party to the 1996 Convention, the residual jurisdiction under sections 2(1)(b)(ii), 3 and 7 of the 1986 Act was relevant if G’s habitual residence had transferred.
3. Habitual residence is a factual question concerned with integration in a social and family environment. The enquiry is open-ended and comparative. It must focus on the child’s current situation, while taking account of relevant historical and continuing connections. The see-saw analogy may assist but must not replace that analysis.
4. The lawful nature of the relocation, the father’s intention that it be permanent, and the preparations made for the move were relevant but not determinative. The move occurred in materially different circumstances from those contemplated by the consent order because G’s sister could not relocate with her.
5. G had lived in England all her life, had never lived apart from her sister, retained her mother, friends and established life in England, and entered an unfamiliar household and school in the USA. Her age and maturity made her state of mind relevant. Her continuing and exceptional opposition to remaining in the USA demonstrated profound instability rather than integration.
6. G therefore had not acquired a sufficient degree of integration or reasonable stability in the USA. She remained habitually resident in England and Wales on the application date. The earlier order permitting removal did not create an estoppel or render the later application res judicata; changed circumstances could justify different orders if jurisdiction existed.
7. The judge proposed an urgent hearing concerning G’s return, her joinder as a party, appointment of a Cafcass guardian, wardship, and steps to obtain a replacement passport. The protective jurisdiction of the High Court was noted but left undecided.

• High Court (Family Division): The appeal from the Family Court at Guildford was allowed. The decision of HHJ Raeside dated 6 March 2025 was set aside, and the jurisdictional issue was determined afresh.