TK v SD

Article 7 of the 1996 Hague Convention can preserve the jurisdiction of a child’s former habitual-residence State after wrongful removal or retention into a non-Contracting State. A first-instance judge should ordinarily follow a later co-ordinate High Court decision that has fully considered an earlier conflicting decision, absent cogent reasons to depart.

Habitual residence requires a broad, non-formulaic assessment of the child’s and family’s circumstances. Relevant matters may include intentions, maturity and understanding, integration, pre-planning, family connections, possessions, schooling and accommodation. If habitual residence shifted before the alleged retention, Article 7 does not preserve the former jurisdiction. Domestic jurisdiction under the Family Law Act 1986 likewise depends on habitual residence on the relevant date.

The applicant mother sought the return of her five sons from Kenya to England. She said that the family had travelled to Kenya for a holiday and that the father had wrongfully retained the children. The father said that the move was permanent, agreed and planned, and challenged the court’s jurisdiction.

Under the Family Law Act 1986 and the 1996 Hague Convention, the court had to determine whether Article 7 could apply to a non-Contracting State, whether the children remained habitually resident in England when the alleged retention occurred, and whether any domestic jurisdiction existed. The court also had to consider a stay and welfare orders if jurisdiction were established.

The court found that the children’s habitual residence had shifted to Kenya by mid-August 2025. The central issue was therefore whether the court retained or otherwise possessed jurisdiction to order their return.

Application dismissed. The court held that it had no jurisdiction under the 1996 Hague Convention or domestic law. The issues of a stay and the children’s best interests therefore did not arise.

1. Article 7. Article 7 could apply where the alleged wrongful retention occurred in a non-Contracting State. The court treated SA v AA [2023] EWHC 2016 (Fam) as binding at High Court level. Applying Colchester Estates (Cardiff) v Carlton Industries plc [1986] Ch 80 and In re Lune Metal Products Ltd (in administration) [2006] EWCA Civ 1720, it followed the later co-ordinate decision after full consideration of the earlier conflicting authorities.
2. Habitual residence. The assessment was broad and non-formulaic. The court considered integration, parental intentions and pre-planning, the children’s maturity and understanding, family links, possessions, accommodation and education. The approach was informed by In re F (A Child) [2025] EWCA Civ 911, Re LC [2014] UKSC 1 and In re B [2016] UKSC 4.
3. Application of the test. The parents intended a permanent relocation when travelling to Kenya. One-way tickets, preparations to furnish accommodation, school arrangements, the children’s accounts and the removal of possessions supported that conclusion. The London tenancy remained, but the house was no longer their home. By mid-August 2025 the children were habitually resident in Kenya. The mother’s coercion and controlling conduct, and her later return to England, did not alter that conclusion. The court nevertheless found serious coercive and controlling behaviour, including conduct amounting to stranding or transnational abandonment.
4. Domestic jurisdiction. Under the Family Law Act 1986, the children were not habitually resident in England and Wales on the application date. They had not been wrongfully retained in Kenya, so Article 7 did not preserve English jurisdiction. The judge was inclined to permit disclosure of the judgment and factual findings to courts or bodies considering the children’s welfare, subject to further submissions.