A (A Child) (Habitual Residence), Re [2026] EWHC 1140 (Fam)

[2026] EWHC 1140 (Fam)Case No FD25P00667
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/04/2026
Before
HIS HONOUR JUDGE STEPHEN SMITH(Sitting as a Deputy High Court Judge)
Re A (A Child) (Habitual Residence)
Hearing Hearing dates: 27 and 28 April 2026
The Applicant appeared in person
Ms O. Currie (instructed by Drake & Case) for the First Respondent
Ms A. Cameron-Douglas (instructed by Cafcass Legal) for the Second Respondent
Approved Judgment
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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

HHJ Stephen Smith (sitting as a Deputy High Court Judge):

[1]On 28 December 2024, A, a boy born in April 2022, was taken by his mother from England to India. The mother and father had agreed, at least ostensibly, that the mother and A could travel to India and remain there until September 2025, at which point they were to return to England. The mother, however, did not return A to England. They both remain in India.[2]On 17 October 2025, the father applied under the inherent jurisdiction of the High Court for an order making A a ward of the court and sought his summary return under the inherent jurisdiction.[3]By an order dated 5 November 2025, Mr Justice Cusworth gave directions for this matter to be timetabled to a final hearing, in order to determine whether the court has jurisdiction in relation to A, and to determine whether the order for wardship should continue and whether to make a summary return order.[4]For reasons I need not go into, there was a delay in the service of the order directing the guardian’s analysis, with the consequence that the final hearing could not be listed until 27 April 2026.

The issues to be decided

[5]Against that background, there are three principal issues to be determined in this judgment: i) First, whether A was habitually resident in England or India when proceedings were commenced on 17 October 2025? The mother contends that A was habitually resident in India by that point, with the result that this court lacks jurisdiction, and that is the end of the matter. The father says that A was habitually resident in England. ii) Secondly, and in any event, is England and Wales the convenient forum for this application to be determined? The mother has made two applications to the family court local to where she lives in India. She contends that that court is the convenient forum for this matter to be determined. The father resists that position. iii) Thirdly, in the event that this court concludes that it does enjoy the jurisdiction to hear the father’s application, by a C2 application dated 21 April 2026, the mother seeks to rely on (additional) allegations of abuse against the father. These allegations emerged during the mother’s interviews with the guardian, Emma Huntington, who observed in her final analysis dated 27 April 2026 that the mother alleged more detailed abuse to her than she had detailed in her witness statements. If I accept that this court has jurisdiction, this application must be determined, and if granted additional case management decisions are likely to be required. The application is resisted by the father.[6]I heard argument on all three issues at the final hearing. The father appeared before me as a litigant in person, and the mother joined remotely from India to observe the proceedings. I thank all parties for their helpful and constructive submissions. I did not hear evidence from the mother, although, on the basis that the father’s submissions strayed into accounts relating to evidential matters, I arranged for him to be affirmed before doing so.

What I have decided

[7]For the reasons set out below, I have concluded that A was habitually resident in India when the father commenced proceedings on 17 October 2025, and that he remains habitually resident in India. That being so, this court does not enjoy the jurisdiction to entertain this application further, and it is dismissed. Accordingly, it is not necessary for me to rule on the forum issue, and the question of the mother’s application to rely on additional allegations of abuse falls away.[8]I appreciate that the father will be disappointed by this result. I wish to stress to both parties that nothing in this judgment seeks to determine where, and with whom, A must eventually live. At its highest, this judgment simply decides that it is not for the courts in this jurisdiction to determine those questions, and any other matters arising.

Factual background

[9]The mother and father married in India in 2015. They moved to the United Kingdom shortly afterwards for a period, before leaving for Singapore and India. The father and mother returned to the UK permanently in September 2018 and January 2019 respectively. The father is a British citizen, having renounced his previous Indian citizenship. The mother is a citizen of India, but is said to hold indefinite leave to remain in the United Kingdom. A is a British citizen. He previously held, or was entitled to, Indian citizenship. This appears to have been relinquished on his behalf by his parents, with the consequence that (as will be seen) he is subject to Indian immigration control, and requires a visa in order to permit his lawfully residence in the country.[10]In early 2024 the mother indicated that she wished to separate from the father and seek family support from her parents in India. In July of that year divorce proceedings were commenced in this jurisdiction, apparently with the agreement of both parents on a no-fault basis. It was agreed between the parents that the mother and A would spend most of 2025 in India with the mother’s family, departing on 28 December 2024, returning to England in September 2025. The intention was that A would commence early years education upon his return.[11]The father enjoyed regular video contact with A in the months immediately following his arrival in India. In April 2025, the father visited his son in India to celebrate his birthday, and enjoyed unsupervised family time with him.[12]In around June 2025, the father detected a change in the mother’s attitude towards him. It is his case that, at around that time, the mother sought to revisit the proposed financial settlement that that they had agreed in relation to the division of their matrimonial assets, and in relation to the welfare of A. From that point, he says, the mother became reluctant to facilitate remote direct contact between him and A, and was noncommittal about the arrangements for their return to the United Kingdom.[13]It is the mother’s case that throughout her marriage to the father she experienced ongoing emotional distress and controlling and coercive behaviour. She appears to accept that she had little intention of returning to England upon her departure in December 2024. The mother’s position is that she only agreed to a temporary departure due to the pressure placed upon her by the father: see para. 11 of her position statement for the final hearing. It is not entirely clear whether the mother had no intention of returning to the UK at all, or whether she would reluctantly entertain the possibility. At para. 12 of her position statement, the mother gives the impression that she was galvanised into remaining in India through the encouragement of her family and friends once she was already in-country.[14]As far as A’s current arrangements in India are concerned, he and the mother live with her parents in her parents’ home. The mother reports that this provides A with stability, care and emotional security. She is his primary caregiver. A is registered with a doctor’s surgery, and has had all vaccinations administered in accordance with public health recommendations given in the United Kingdom and in India.[15]A started at a local nursery in India on 7 April 2025. The mother describes him as being well settled in that environment, and that he has made strong friendships. He is thriving. His routine includes school, outdoor play, structured activities, interacting with his extended family, and living in a nurturing home environment. It was the father who enrolled A at the nursery, paying for 12 months’ fees at the start of the academic year (it is the father’s case that meeting the entire payment at the outset entitled lead to a discount, and that any unused fees would be refunded on a pro-rata basis in the event that A is withdrawn prior to the end of the academic year, although there is no documentary evidence to that effect). A is registered to remain for the next academic session in India at the nursery.[16]The mother has explained that A has begun to learn early numeracy skills, and that he has developed strong language skills in English and in Hindi. He is beginning to learn how to pray in Gujarati, and to develop his cultural identity and sense of belonging. He has an Indian visa until 26 December 2026, and the mother contends that he will be eligible for a visa as an Overseas Citizen of India.[17]The father’s parents live nearby in India. They have had some contact with A, but the mother reports that it has been sporadic recently.[18]On 13 October 2025, the mother issued an application in the Indian courts for the permanent custody and guardianship of A, pre-dating the father’s application under the inherent jurisdiction by four days. The father has challenged those proceedings on the basis of jurisdiction. The latest status of those proceedings is not clear. There is no expert evidence about Indian family law or its practice and procedure before this court.[19]On 8 April 2026, the mother issued a First Information Report (“FIR”) to the police in India in respect of allegations of domestic abuse against the father.

The parties’ positions

[20]The father contends that my focus should not be the current habitual residence of A, but rather must be how the current circumstances came to pass. The circumstances of A’s residence in India were orchestrated following his wrongful removal from England and Wales by the mother. Although the father ostensibly consented to A’s removal, his consent was procured through the mother’s dishonesty, he maintains. He also contends that the mother’s resistance to A’s return to this jurisdiction is linked to her desire to adopt a more robust position in the financial remedy proceedings.[21]Overall, the father underlines the circumstances which obtained before A travelled to India: he was born in the United Kingdom, he is a British citizen, he only knew life in this jurisdiction, his father resides here, his mother previously lived and worked here, he speaks English, he is enrolled in nursery and he is registered for healthcare. While A is presently in India, he remains registered for primary school and healthcare in this jurisdiction. His father continues to reside here and is employed here. Although A’s linguistic skills, in particular in Hindi and Gujarati, have improved in India, that is a neutral factor, he says, because those languages would be taught in the family home in London in any event.[22]In relation to the issue of forum, the father contends that he is at a real disadvantage when seeking to engage in the proceedings in India. There is a risk he would be arrested pursuant to the FIR upon his return, meaning he is now in fear of returning to India in order to litigate his case there. Remote participation is not possible in the way that it is permitted in this jurisdiction. Cafcass has already reported for the purposes of these proceedings, meaning that this court is well-placed to adjudicate upon the disputes between the parents concerning A.[23]Finally, the father opposes expanding the proceedings to encompass the mother’s allegations of abuse. In the event that A’s return is ordered, there are sufficient protective steps that can be taken in this jurisdiction to address those allegations while ensuring that A remain safe. He stresses that the allegations are without foundation in any event.[24]For the mother, she maintains that by the time proceedings were commenced in this jurisdiction, A had resided in India for some 10 months. He achieved a significant degree of integration. He was not habitually resident in England and Wales, and this court lacks jurisdiction. The mother also contends that the Indian courts are a convenient jurisdiction to resolve the family proceedings between the parents. If I am against her on the two jurisdictional issues, I should grant her C2 application to adduce additional allegations of domestic abuse against the father, and give case management directions accordingly.

The law

[25]There is no dispute about the law.[26]India is not a signatory to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”).[27]Accordingly, the question of jurisdiction is governed by the Family Law Act 1986 (“the 1986 Act”) or the child’s habitual residence.[28]Sections 1 to 3 of the 1986 Act provide, where relevant:
“1. — Orders to which Part I applies. (1) Subject to the following provisions of this section, in this Part [“Part I order”] means— (a) a section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order; […] (d) an order made by a court in England and Wales in the exercise of the inherent jurisdiction of the High Court with respect to children— (i) so far as it gives care of a child to any person or provides for contact with, or the education of, a child; but (ii) excluding an order varying or revoking such an order; 2. — Jurisdiction: general. (1) A court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless– (a) it has jurisdiction under the Hague Convention, or (b) the Hague Convention does not apply but– (i) the question of making the order arises in or in connection with matrimonial proceedings or civil partnership proceedings and the condition in section 2A of this Act is satisfied, or (ii) the condition in section 3 of this Act is satisfied. (3) A court in England and Wales shall not make a section 1(1)(d) order unless– (a) it has jurisdiction under the Hague Convention, or (b) the Hague Convention does not apply but– (i) the condition in section 3 of this Act is satisfied, or (ii) the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection. […] 3. — Habitual residence or presence of child. (1) The condition referred to in section 2(1)(b)(ii) of this Act is that on the relevant date the child concerned— (a) is habitually resident in England and Wales, or (b) is present in England and Wales and is not habitually resident in any part of the United Kingdom, and, in either case, the jurisdiction of the court is not excluded by subsection (2) below.” (a) a section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order; […] (d) an order made by a court in England and Wales in the exercise of the inherent jurisdiction of the High Court with respect to children— (i) so far as it gives care of a child to any person or provides for contact with, or the education of, a child; but (ii) excluding an order varying or revoking such an order; (a) it has jurisdiction under the Hague Convention, or (b) the Hague Convention does not apply but– (i) the question of making the order arises in or in connection with matrimonial proceedings or civil partnership proceedings and the condition in section 2A of this Act is satisfied, or (ii) the condition in section 3 of this Act is satisfied. (a) it has jurisdiction under the Hague Convention, or (b) the Hague Convention does not apply but– (i) the condition in section 3 of this Act is satisfied, or (ii) the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection. (a) is habitually resident in England and Wales, or (b) is present in England and Wales and is not habitually resident in any part of the United Kingdom, and, in either case, the jurisdiction of the court is not excluded by subsection (2) below.”
[29]Section 7 defines the term “relevant date”: “(c) “the relevant date” means, in relation to the making or variation of an order— (i) where an application is made for an order to be made or varied, the date of the application (or first application, if two or more are determined together)…”. (i) where an application is made for an order to be made or varied, the date of the application (or first application, if two or more are determined together)…”.[30]A wardship order and return order are not, without more, orders under section 1(1)(d) of the 1989 Act: see Re A (Children) [2013] UKSC 60 at para. 27 per Lady Hale PSC. However, where a statement supporting the wardship and return application seeks to give care to a parent, it can fall within section 1(1)(d): see Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA Civ 659 (“Re A (A Child)”) at para. 76, per Moylan LJ. Accordingly, where (as here) an applicant seeks a return order in relation to a non-Hague State, and does not seek an order to give the care of the child to any person, provide for contact with the child, or make provision for the child’s education, the court must determine jurisdiction based on the question of habitual residence.[31]As a matter of domestic law, the provisions of the 1996 Convention apply when determining the issue of jurisdiction in relation to a state that is not a party to the convention. See paras 57 to 59 of Re A (A Child). That being so, the question of whether this court regards a child as habitually resident in this jurisdiction or in a rival non-contracting jurisdiction is to be determined by reference to the domestic authorities addressing that issue, including by reference to any applicable incorporated international law.[32]In Re London Borough of Hackney v P and Others (Jurisdiction: 1996 Hague Child Protection Convention) [2023] EWCA Civ 1213, Moylan LJ summarised the applicable principles at para. 125. Relevant for present purposes are the following principles (sub-paragraph numbering taken from the original): “(ii) the court must determine the issue of jurisdiction at the outset of proceedings by reference to the date on which the proceedings were commenced; (iii) jurisdiction under the 1996 Convention can be lost during the course of proceedings, if it was based on habitual residence and the child has ceased to be habitually resident in England and Wales. Accordingly, the court must be satisfied that it retains jurisdiction at the final hearing…”.[33]Against that background, I turn to the concept of “habitual residence”. In Re B (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4, Lord Wilson described “habitual residence” in the following terms, at para. 27:
“A child’s habitual residence in a state is the internationally recognised threshold to the vesting in the courts of that state of jurisdiction to determine issues in relation to him (or her).”
[34]Moylan LJ summarised the relevant principles in Re F (A Child) (Habitual Residence) [2025] EWCA Civ 911 at para. 58. Other than to note the caution with which Moylan LJ prefaced his summary of those principles, I do not propose to set the guidance out in full; I will address the relevant principles in the course of my substantive analysis, below. At para. 58, Moylan LJ said:
“The determination of habitual residence is not a formulaic exercise because it requires a broad consideration of the child's and the family's circumstances and because different factors will be present in different cases with the same factor being more significant in one case than another. Accordingly, as was said in the case of HR Proceedings brought by HR (With the participation of KO and another) (Case C-512/17)[2018] Fam 385. , at [54], "guidance provided in the context of one case may be transposed to another case only with caution".”
[35]See also the following guidance given by Lord Wilson in Re B (Habitual Residence: Inherent Jurisdiction) about the loss and subsequent acquisition of habitual residence, at para. 46:
“The identification of a child’s habitual residence is overarchingly a question of fact. In making the following three suggestions about the point at which habitual residence might be lost and gained, I offer not sub-rules but expectations which the fact-finder may well find to be unfulfilled in the case before him: (a) the deeper the child’s integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state; (b) the greater the amount of adult pre-planning of the move, including pre-arrangements for the child’s day-to-day life in the new state, probably the faster his achievement of that requisite degree; and (c) were all the central members of the child’s life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it.” (a) the deeper the child’s integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state; (b) the greater the amount of adult pre-planning of the move, including pre-arrangements for the child’s day-to-day life in the new state, probably the faster his achievement of that requisite degree; and (c) were all the central members of the child’s life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it.”
[36]There is no burden of proof in relation to the issue of habitual residence. See the guidance given by Moylan LJ in Re F at paras 39 and 40.

Issue 1: A was habitually resident in India on 17 October 2025

[37]Naturally, I have reflected on all the evidence and submissions that I have heard in relation to all issues before the court.[38]These proceedings were commenced by the father on 17 October 2025. That is the relevant date for the purposes of determining jurisdiction. In the event that I conclude that A was habitually resident in England and Wales on that date, I must additionally be satisfied that he remained habitually resident at the date of the final hearing.[39]I commence with a number of preliminary observations.[40]First, I have not adjudicated on the allegations of domestic abuse raised by the mother. I have reached no findings on those issues.[41]Secondly, while I did not hear evidence from the mother, Ms Currie accepted on her behalf that the mother secured the father’s agreement to her departure with A on the footing that that the visit would only be until September 2025. In her witness statements prepared for these proceedings the mother does not, in terms, address her state of mind upon reaching that agreement. The account she gives of being married to the father and “while living in London” does contain serious allegations against the father, such as emotional abuse, and controlling and coercive behaviour. While it may be possible to infer from those accounts that what the mother really wanted was to flee to India to the safety of her family, and to stay there, she does not go so far in her witness statements as to say that she misled the father upon her departure in December 2024. That acceptance has come through Ms Currie’s position statement for the final hearing at para. 11. Para. 11 must be read alongside what the mother says in the next paragraph, namely that it was upon being encouraged by family and friends to remain in India that she decided to stay. I will approach my analysis on the footing (but without finding) that the mother deliberately misled the father by not telling him the whole truth about her fears and her feelings, and her desire to remain in India beyond September 2025. In turn, I accept the father’s position that he would not have agreed to the trip had he known about the mother’s true intentions or concerns.[42]Thirdly, I acknowledge the father’s sense of injustice at the mother’s retention of A in India. When A’s age and circumstances in the United Kingdom upon departure are contrasted with the position that obtained in India on 17 October 2025, it is difficult to compare like for like. Ten months is a long time in the life of a young boy like A. There will have been significant developmental steps in that time, with the consequence that A has begun to acquire a greater sense of his identity, interests and relationships than was the case in the run up to 28 December 2024, the date of departure. I understand why the father implored me to look back in time at the situation as at 28 December 2024, rather than on 17 October 2025, and I equally understand that he will feel aggrieved at the fact that the relevant date is, as a matter of law, 17 October 2025. Put another way, from the father’s perspective, the mother’s wrongful removal has allowed her to establish A’s integration in India, and to put down roots, such that he perceives significant obstacles to his attempt to establish that A remained integrated in England and Wales even after ten months of his new life in India. I take these factors into account, and I wish to acknowledge the father’s understandable position. However, the law requires me to address the situation at the date proceedings were commenced.[43]I am grateful to Ms Cameron-Douglas who helpfully set out a number of factors relevant to this issue at para. 46 and following of her skeleton argument, and to Ms Currie and the father for outlining their submissions so clearly. I will now turn to the relevant factors.[44]Factors which may suggest that A was habitually resident in England and Wales upon the commencement of proceedings include: i) Until A was unilaterally retained by the mother in India, the only country where he had ever lived was England. This point is emphasised by the father. He stresses the extent of A’s integration into life in England; he was registered with the NHS here, and there were plans for him to enrol at a nursery upon his return, for which the father had secured him a place. His only address was the family home in London, and that remains the address at which all official correspondence relating to A in this jurisdiction is sent. ii) The parents’ express, agreed intention when A was taken to India in December 2024 was for it to be a temporary stay, until September 2025. iii) The extent of A’s integration in India is limited by the curtailment of his relationship with his father. The father initially enjoyed regular direct remote contact with A, and was able to spend time with him in person in April 2025. More recently, this has been curtailed by the mother. The mother has prevented A’s nursery from sharing information with the father (see the guardian’s report at para. 37). iv) A is a British citizen. His Indian citizenship has been relinquished. He may only lawfully reside in India with a visa, and presently only holds a visa until the end of this year. v) A speaks English is his first language. Although he is learning Hindi and Gujarati, he would learn those languages at home residing with the father, and alongside the mother (residing separately) in the United Kingdom in any event. The linguistic impact of living in India is, therefore, less significant than would otherwise appear to be the case.[45]Factors which support the conclusion that A was habitually resident in India on 17 October 2025 include the following: i) A is likely to have little recollection of his time in this country. His conscious lived experience will relate predominantly to the time he spent living in India. A left the United Kingdom for India before his third birthday. He will have had few memories of life in this jurisdiction at that stage. In the time that elapsed prior to the commencement of proceedings on 17 October 2025, A will have developed a much deeper and conscious understanding of his living environment, and the broader extended family amongst whom he now lives. ii) A’s basic care needs are being met in India. iii) A is settled in India. A’s main carer, the mother, is settled in India and is integrated there. She has secured employment. She has brought proceedings in the domestic courts in that jurisdiction in relation to the arrangements for A’s care. A is registered at, and has been attending, a nursery in India. He is enrolled for the next academic year. iv) Although living in England would have provided some opportunities for A to learn Hindi and Gujarati, living in India means that he is far more likely to be immersed in those linguistic environments. His proficiency in those languages is likely to be increasing at a rate much greater than would have been the case had he remained living in London. This itself is a reflection of his integration and links that now exist in relation to India. v) A is registered with doctors in India and has received up-to-date immunisations there. vi) A is enrolled in numerous clubs and hobbies in India, including football, parkour and swimming. vii) He has resided with his mother in her parents’ home for the last 16 months (and at the date of application, for around 10 months). This is the home with which A is most familiar. The former family home in London will now be but a distant memory; A has not lived there since he was two years old, and any recollections that he will have of it are likely to be distant and vague. viii) The father supported many stages of A’s residence in India, including funding his place at nursery, and assisting with the process for applying for a visa.[46]Drawing this analysis together, and applying the guidance summarised and collated by Moylan LJ in Re F, I conclude that A was habitually resident in India on 17 October 2025.[47]The length of A’s residence in India on 17 October 2025, for a child of three, was a significant proportion of his entire life, and will have amounted to a still greater proportion of his living memory. I have considered Lord Wilson’s guidance in Re B, in particular in relation to the depth of A’s integration in England and Wales prior to the move. The depth and extent of his previous integration in this jurisdiction necessarily means that the time taken to integrate sufficiently to acquire habitual residence in India would have been longer than would otherwise have been the case. But, in the context of a boy aged two years and eight months upon his arrival in India, and three and a half on 17 October 2025, I consider that the time by then spent in India is indicative of sufficient integration having been achieved, when considered alongside all other factors.[48]Aside from A’s visa situation, there is no other characteristic of his residence in India that is temporary or intermittent. His registration at nursery, and enrolment for the next year, strongly militates against a conclusion that the quality of his residence is temporary or intermittent. In India, A is surrounded by members of his maternal and paternal families. While the father remains in England and Wales, the reality is that there are far more family links around A in India than there are in this jurisdiction. Of course, I accept that the father’s separation from his son necessarily means that there is a significant omission from his life in India, and I take this into account. But looking to the context of A’s life and support network in India, there is a strong sense in which his current environment means that he is likely to be far more settled, with a greater sense of family and community, than was previously the case.[49]The only factor which suggests any form of impermanence in relation to A’s residence in India is his visa situation. Having relinquished his Indian citizenship, he is reliant on being granted permission to remain in the country by the Indian immigration authorities. The parents secured a visa for his initial stay, which has since been extended by a further 12 months to December 2026. On the material before me, there is nothing to suggest that A is likely to encounter significant difficulties in seeking lawfully to remain in India beyond the expiry of his current visa. The mother has applied for a five-year extension and, while there is no expert evidence relating to the Indian visa regime, the fact that A was able to secure an initial 12-month visa, followed by a renewed 12-month visa valid until the end of this year, to reside with his Indian mother alongside the wider Indian maternal and paternal families, in India, combine to lead me to the conclusion that there is a realistic prospect that A’s immigration status in India is unlikely to be a barrier to him remaining in the country. Put another way, the need for A to secure a visa to regulate his stay is, for the purposes of the present analysis, a process-based requirement rather than any form of substantive obstacle.[50]I therefore conclude that A’s residence in India has a quality of stability to it, notwithstanding the need for his visa to be renewed. The stability of his residence in India, with the extensive family support, and the progress he has now been making in pre-school, surpasses the position which obtained in the United Kingdom. As held in In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2015] UKSC 35,[2016] AC 76 per Lord Reedat para. 16:
“It is therefore the stability of the residence that is important, not whether it is of a permanent character. There is no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely.”
[51]In my preliminary observations above, I addressed the impact on the father of the mother’s unilateral decision to retain A in India. The intentions of the parents are, in principle, a relevant factor to determine habitual residence. In these proceedings, the intentions of the mother and the father are diametrically opposed, dividing along the lines of the substantive issue in this litigation. The mother, if I accept her case in relation to A being habitually resident in India, will have succeeded in unilaterally changing A’s habitual residence to India, in defiance of the father’s wishes. In my judgment, while any change in A’s habitual residence will have been brought about unilaterally by the mother, there is no “rule” that one parent cannot unilaterally change a child’s habitual residence: see para. 58(d) of Re F.[52]I set these factors against A’s previous habitual residence in this jurisdiction. His integration here was deep and permanent. As a British citizen, he enjoys the right of abode, with no restrictions on his stay. He retains that right. The father remains here, meaning that, whatever the position in India, there will always be a significant part of A’s life that is not present in India, unless of course the father relocates to the country of his birth and heritage. In addition, as set out above, when addressing a comparison between A’s circumstances on 17 October 2025 with those immediately before his departure on 28 December 2024, there is a sense in which it is not possible to compare like for like. Much has happened in the life of this young person in the time between those two dates. I have taken those factors into account. But those factors, when weighed against the strength of the factors militating in favour of A’s habitual residence being in India, are not sufficient to outweigh the matters set out above.[53]Drawing this analysis together, for all of the reasons set out above, I conclude that on 17 October 2025, A was habitually resident in India.[54]The above conclusions apply with all the more force in relation to the position at the date of the final hearing before me, 27 April 2026.

Issues 2 and 3: not necessary to consider

[55]In light of the above conclusions, the question of forum and the mother’s C2 application fall away and do not need to be considered.

Conclusion

[56]Pursuant to the matters identified by the order of Cusworth J dated 5 November 2025, I make the following orders: i) I declare that on 17 October 2025, A was habitually resident in India and that, accordingly, this court does not have jurisdiction to hear this application. ii) I discharge the order for A’s wardship. iii) I dismiss the application for A’s summary return.[57]I will ask the parties to draw a suitable order.[58]That is the judgment of the court.