S, L and K (Children: Habitual Residence, non-convention states: Jersey; summary return), Re

In a non-Convention summary-return application, the governing question is the children’s welfare and best interests. The court must make a swift, realistic and unsentimental assessment, without importing the technical concepts or presumptions of the 1980 Hague Convention.

Habitual residence may be relevant when identifying the children’s home country and the territory with which they have the closer connection, but it is not a jurisdictional prerequisite. The court must consider the up-to-date evidence and, where appropriate, the welfare matters identified in section 1(3) of the Children Act 1989, including the likely effect of a change, harm suffered or risked, and parental capacity.

Untested allegations of domestic abuse must be weighed in the welfare evaluation but do not determine jurisdiction. A summary return determines the proper forum for substantive welfare decisions, not their eventual outcome.

The father applied under the inherent jurisdiction for the summary return of three children from Jersey to England. The application was not brought under the 1980 Hague Convention, and Jersey is not a separate sovereign contracting state for Convention purposes in relations with England.

The mother opposed return, challenged the children’s habitual residence, and raised allegations of domestic abuse. The Children’s Guardian and Jersey Children’s Services supported return to England. The issues included jurisdiction, the children’s connection with England and Jersey, best interests, and whether the threshold for intervention under the Children Act 1989 was met.

1. Jurisdiction and applicable law. The application was properly determined under the inherent jurisdiction. In relations between England and Jersey, the Hague Conventions did not govern the removal. The court therefore applied the welfare and best-interests test stated in Re J (A Child) and Re O (Summary return: Non-convention country), rather than the principles of the 1980 Hague Convention.
2. Habitual residence and home country. Habitual residence was relevant but not essential to jurisdiction. The court considered the children’s degree of connection, integration, nationality, residence, education and family life in each territory. England was their home country and the territory with which they had the greater integration and connection. Their short and unstable experience in Jersey did not establish meaningful integration there.
3. Welfare evaluation. The court considered the up-to-date evidence and the welfare matters in section 1(3) of the Children Act 1989. The likely effect of further changes, the harm suffered or risked, the children’s needs, and the parents’ capacity to meet those needs were particularly weighty. The children had experienced instability, separation, placement changes and safeguarding concerns in Jersey.
4. Domestic abuse allegations. The allegations were taken at their highest but were not determined because the issue was the proper forum for their determination. They were an important welfare factor, but did not determine jurisdiction or displace the conclusion that return was in the children’s best interests.
5. Disposition. A summary return to England was proportionate and necessary because delay would perpetuate harm and England was the appropriate forum for future decisions. The court made no interim care orders but found reasonable grounds to believe that the threshold under section 31(2) was met and directed North Lincolnshire Council to investigate under section 37 of the Children Act 1989. Orders were to be implemented with cooperation between the English and Jersey authorities.

First-instance decision. The judgment records earlier directions hearings in the same proceedings but no prior appellate decision.