S, L and K (Children: Habitual Residence, non-convention states: Jersey; summary return), Re [2026] EWHC 1296 (Fam)

[2026] EWHC 1296 (Fam)Case No FD25P00655
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF THE CHILDREN ACT 1989
IN THE MATTER OF THE INHERENT JURISDICTION OF THE HIGH COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29 May 2026
Before
Miss Nageena Khalique KC
Between
RHFApplicantLHMRespondents
Paul Hepher (instructed by Sills and Betteridge LLP) for ApplicantAlison Moore (instructed by RWK Goodman) for First RespondentBarry McAlinden (instructed by Cafcass Legal) for Second, Third & Fourth RespondentsGail Farrington (instructed by North Lincolnshire Council) for Fifth RespondentJeremy Kerley legal adviser for Law Officers Department, JerseyHearing Hearing dates: 30 April 2026 and 01 May 2026
JudgmentThis judgment was handed down remotely at 10.30am on 29May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................This judgment was delivered in private and a transparency order is in force. 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 and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.Miss Nageena Khalique KC
[1]This judgment concerns the father’s application, issued on 14 October 2025, for the summary return of the parties’ three children, S, a girl aged 7, L a girl aged 4 and K, a boy aged 2, from Jersey to England.[2]The application was brought under the inherent jurisdiction of the High Court and not under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The possible relevance of the 1996 Hague Convention has been raised by the father and the Children’s Guardian and is addressed below.[3]The mother opposes the application. She contends that, by the time proceedings were issued, the children were habitually resident in Jersey and raises allegations of domestic abuse. She submits that even if jurisdiction exists, this court should decline to order a summary return.[4]The children are parties to the proceedings and are represented by a Children’s Guardian. The Guardian supports the father’s application both in relation to the court having jurisdiction and the summary return.[5]Jersey Children’s Services have participated throughout. They have consistently stated that England and Wales is the children’s home jurisdiction, notwithstanding the commencement of public-law proceedings in Jersey, and they support a planned summary return.[6]North Lincolnshire local authority attended the hearing, represented by counsel and indicated that they would become involved in respect of the welfare of the children, in the event that I direct their summary return to England.[7]On the first day of the final hearing, Ms Moore, counsel on behalf of the mother, informed the court that she had been instructed at short notice. She requested further time to take instructions and file a position statement. I granted her that time, with the agreement of the parties, and am grateful to all counsel for their focussed submissions and collaboration in making the best use of court time.[8]Special measures were in place in light of allegations of domestic abuse made by the mother and to allow for the father to be assisted by an intermediary in light of his vulnerabilities. No party wished to adduce any oral evidence and I was satisfied that the case could be heard on that basis. B. ISSUES FOR DETERMINATION[9]The court must determine: a) whether this court has jurisdiction to determine the application; b) where the children were ‘habitually resident’ on 14 October 2025; c) whether it is appropriate to order a summary return; and d) whether there are reasonable grounds to believe the threshold criteria under s.31 Children Act 1989 are satisfied and whether a direction under s.37 Children Act 1989 should be made.[10]This judgment does not determine long-term welfare arrangements or whether interim or final care orders should ultimately be made. C. BACKGROUND FACTS[11]Prior to August 2025 the children were living in England by way of shared care between their parents in Scunthorpe, Lincolnshire, where the father continues to live.[12]The mother formerly lived in Jersey but had lived in Lincolnshire for some considerable time. The father agreed that the mother should take a trip to Jersey with L on 26 June 2025. The mother returned with bruising to her stomach. The father suspected these injuries were inflicted by her boyfriend.[13]The mother took L for a second trip to Jersey on 15 August 2025. She returned to England leaving L in Jersey, stating she wished to attend a family party in Weymouth with the other children. The father agreed to this, handing K from his care to the mother, and S from the paternal grandmother's care on 19 and 20 August 2025 respectively.[14]The mother did not go to Weymouth, but instead removed the children to Jersey where on 22 August 2025 she messaged the father to state they would not be coming back. As such, the mother had removed all three children in August 2025. She made it clear to the father that she did not intend to return with them, and wanted a new start in Jersey. The father says he did not consent to this.[15]On 24 March 2026 further to the making of an Emergency Protection Order by the Jersey Family Court on grounds of neglect, the children were removed from mother’s care. They were placed temporarily in foster care (L and S together, separately from K). There is presently no placement in Jersey that can take all three children together. The mother is appealing the decision to remove the children from her care, with a two day hearing listed in Jersey in May 2026.[16]The paternal grandmother travelled to Jersey to take on care of the children, further to the Jersey care plan but after staying in a hotel from 24 to 27 March 2026 with them, the grandmother felt unable to manage all three children in those circumstances and returned to the UK.[17]Jersey children's services have indicated their wish to place the children back in England and have conducted some preliminary assessments of the paternal family including the father, paternal grandmother, and her partner. A sibling assessment is due to be completed by 1 June 2026. They have also been liaising closely with North Lincolnshire children’s services who have indicated that, whilst taking serious note of the findings in Jersey, they will need to undertake their own independent assessment before considering whether to issue public law proceedings in England.

Procedural history

[18]The father issued his C66 application on 14 October 2025. The first hearing took place on 11 November 2025 on notice to the mother. The father attended remotely, represented by counsel, the mother attended unrepresented by video link from Jersey. She asked for an adjournment to seek representation. Case management directions were made and the mother was ordered to provide a statement by 21 November 2025 setting out her plans for the children. She subsequently provided an e-mail note which confirmed that she planned to stay with the children in Jersey.[19]The mother did not wish the father to have any contact with the children and made allegations of domestic abuse against him. The court directed that contact between the father and children was to be arranged through Jersey Children’s Services.[20]The matter returned to court on 3 December 2025 when the mother was represented. The parents attended remotely. The court granted the father’s application for a psychologist to prepare a cognitive assessment of him.[21]The mother accepted that she had been contacting the father in affectionate terms since she had left, telling him of how the children were missing him, and sending video clips of them. She had also invited him to visit in Jersey. The father gave undertakings including not to discuss the proceedings with the children and weekly video contact with the father continued.[22]At the hearing on 11 February 2026 the children were joined as parties to the proceedings, with Ms Veitch being appointed as the Children’s Guardian.[23]On 11 March 2026, Ms Veitch reported that she had been to Jersey to meet the children and had been in contact with Jersey children’s services. She was not proposing a separate fact-finding hearing, and supported the father continuing with weekly indirect contact and supervised direct contact in Jersey. She asked that the mother clarify what if any protective measures she would seek if the children were to return to England.[24]Drug testing (for cocaine and cannabis) of both parents by hair strand analysis covering a six-month period was directed. The drug test results for the mother show repeat use of cannabis from September 2025 to March 2026 and repeat and significant use of cocaine from September 2025 to February 2026. The father’s hair was found to be too short to take a sample for hair strand testing. However, on 1 April 2026 urine and breathalyser tests were negative for alcohol and the drugs which had been tested.[25]The court also made provision for the father to undertake an intermediary assessment. A psychological assessment of the father dated 23 January 2026 reports that he presents with significant issues with his mental health and autism but, with support, he has litigation capacity. He also has hearing difficulties and is in the clinically extremely severe range for stress and depression and the severe range for anxiety.

Social services’ involvement

[26]Both North Lincolnshire social services and Jersey social services have been concerned for this family. On their arrival on Jersey on 22 August 2025 the mother contacted a Domestic Violence Abuse worker to make reports of domestic abuse against the father. She moved into a refuge. A referral was made to social services on 28 August 2025.[27]The mother and children remained in temporary accommodation living in a single room in the refuge from 22 August until 22 September 2025 when the mother states she was provided with her own accommodation.[28]The Child and Family Assessment undertaken in September 2025 concluded that the children should be placed on child protection plans under the category of neglect. It is recorded that each child presents with vulnerabilities: L has significant developmental delay and had bruising on her face and head. K presented with poor growth and had multiple bruises.[29]It was reported that the mother would leave the children , whilst visiting her new partner in the care of the maternal grandmother (from whom the mother herself had been removed as a child, due to her alcohol related problems). The mother acknowledged that it was unsafe to leave the children with the grandmother.[30]According to the mother, the children were not registered with a GP until 23 September 2025. Nor were the children enrolled in any educational provision until 6 October 2025 (for S) and 7 January 2026 (for L). Jersey children’s services report that school and nursery attendance was poor and that contact with professionals was chaotic with many missed appointments and concerns about the children when they were presented.[31]Jersey made contact with North Lincolnshire social services and concluded that in Scunthorpe “family interventions have been working with the family on and off for a number of years” and in their assessment of September 2025 wrote:
“In conclusion, the threshold for significant harm has been met. The children are currently experiencing, or are at risk of experiencing, ongoing neglect and potential abuse. The risks are long standing, cumulative, and remain unaddressed despite multi agencies’ support. Without immediate statutory intervention, the safety and well-being of the children cannot be assured. The children should be placed on child protection plans under the category of neglect. A full mental health and cognitive assessment of L is required to better understand her needs and how they impact her parenting……….. A full psychiatric assessment is required to explore the extent to which L's diagnosed mental health conditions, including bipolar disorder and borderline personality disorder, impact her parenting capacity and decision making.”
[32]Jersey social services continued to provide support to the mother and children as she moved to new accommodation. On a visit on 17 November 2025 the social worker found the mother expressing feeling stressed due to the chaotic nature of the home and ongoing behavioural challenges of the children. Concerns were raised about aspects of the home and occasions when the children were not being supervised. Ongoing multiagency help and support was recommended.[33]In the interim care plans of 16 March 2026, concerns about mother’s care were outlined: Chronic environmental neglect and unmet basic care needs• Evidence of house smelling like faeces, faeces smeared on the floor and on the children.• Soiled nappies, rubbish and miscellaneous items left on floors and furniture across multiple visits.• Persistent mould, damp, lack of heating, strong odours and unhygienic sleeping arrangements.• Unsafe household hazards within easy reach of the children (cleaning detergents, clutter, broken or unsuitable equipment).• Lack of available and nutritious food and drink available for the children.• Children not being provided with clean, weather appropriate and required size clothing. Thus, leaving the children cold, dirty and hurt i.e. sore feet due to ill-fitting shoes.• Missed and or cancelled health appointment.• Poor school/nursery attendance. Emotional and developmental neglect• Limited stimulation. Lack of available toys, books and mother playing with and or accessing activities with the children. This includes delayed progression of nursery application.• Poor routines, chaotic environment, inconsistent emotional availability provided by mother.• Children frequently arriving at school/nursery hungry, tired, or inappropriately clothed. Therefore, this impacts on their ability to be ready to learn and or engage comfortably in activities. Recurrent injuries with inconsistent explanations• Multiple occasions where children have been observed to have bruises and or injuries, and medical intervention has not been sought independently and or despite professionals encouraging and advising the parent, namely Ms H.• Inconsistent, contradictory accounts from Ms H regarding how bruises and or injuries occur. This prevent a clear evaluation to be conducted to ensure that appropriate medical advice can be provided.• On 9 March 2026 the mother admitted to administering out of date antibiotics to K despite telling professionals at the time that they were newly prescribed.• On 10 March 2026 the Ambulance service attended the Home and reported that the children had not drank or ate for 24 hours (including K who is 1 year old). Due to dehydration concerns K was given 500ml of water and drank this in one go. The crew reported that the living conditions were poor and the mother was outside smoking when the crew arrived and was not monitoring the children. Parental vulnerabilities, namely past childhood trauma, mental health and or substance/alcohol misuse.• Concerns regarding Ms H’s health needs, this incudes confirmation of her diagnosis (BPD or Bipolar). In addition, there are concerns regarding Ms H’s emotional availability and presentation towards the children, namely she does not appear attuned to the children’s emotional needs.• Ms H can present with scripted responses, offering inaccurate information, cancelling appointments and minimising concerns. This appears to be evidence of disguised compliance, which therefore may inform the concerns related to lack of meaningful engagement with professionals and or evidence of improvements in the daily lived experiences for the children.• Ms H has a significant history of trauma within her childhood, which may impact on her ability to make informed decisions in the best interests of her children, as well as these issues disrupting and or interfering with her ability to be emotionally available for her children.[34]The children were removed from the mother’s care on 24 March 2026. They have not returned since. They have had supervised contact with the mother, and the father in Jersey. They have had a short period with the paternal grandmother when they were placed with her in a hotel, and then removed again, with separation from each other, K from his older siblings, and a further change of foster placement for K. Their lives in Jersey have been characterised by upheaval, uncertainty and insecurity. D. JERSEY’S CONSTITUTIONAL POSITION AND THE CONVENTIONS[35]Jersey is a Crown Dependency. It is neither a sovereign state nor part of the United Kingdom and has its own legislature and courts. That constitutional status has direct implications for international family law.[36]For the purposes of the Hague Conventions, Jersey is not itself a separate sovereign contracting state; rather, it is treated as part of the United Kingdom, which is the contracting state responsible for its external relations. Accordingly, where the UK has extended a Hague Convention to Jersey, the Island is regarded as a contracting territory vis‑à‑vis other states parties. However, as between the constituent parts of the British Islands (including the UK and Crown Dependencies), the Conventions do not operate “inter se,” because they are not intended to govern relations within a single unitary international personality.[37]The Jersey Law Officers, through Mr Jeremy Kerley, confirmed to the court that removals between Jersey and England are determined under domestic legislation, not the Hague Conventions, and that Jersey is not a signatory to the 1996 Convention.[38]This position accords with English authority. In VB v TR[2020] EWHC 877 (Fam), Mostyn J explained at [7]–[11] that the Hague Conventions do not operate between England and its Crown Dependencies or Overseas Territories, and that the English court must therefore exercise its inherent jurisdiction: “10. … However, that is not a path that the father has adopted in this case. He has applied in Form C66 to the High Court for an order pursuant to its inherent jurisdiction for the summary return of RR to Bermuda. The decisions of the House of Lords in Re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80 and of the Supreme Court in Re NY (a child) 2019] UKSC 49, [2019] 3 WLR 962 confirm that this is a permissible path. However such a cause of action requires the paramountcy principle in section 1(1) of the Children Act 1989 to be applied; for the first six specific matters in section 1(3) to be specifically addressed; and for the eight matters mentioned in paras 56 – 63 of Lord Wilson’s judgment in Re NY( a child) to be worked through.“[39]This is accordingly a non-Convention case.[40]If jurisdiction can be plainly established under the inherent jurisdiction, the question is whether it is necessary or appropriate to found jurisdiction on the 1996 Convention.

THE 1996 HAGUE CONVENTION ARGUMENT

[41]As above, where Jersey is not itself a separate sovereign contracting state but treated as part of the United Kingdom, and where the Conventions do not operate inter se, the question therefore arises whether Article 7 of the 1996 Hague Convention is confined in its operation to cases involving only contracting states, or whether it also applies where a child is removed to, or retained in, a non-contracting state.[42]The father and the Children’s Guardian argue that this case is properly brought under the inherent jurisdiction but in the alternative, the father refers to the cases of SA v AA [2023] EWHC 2016 (Fam) (a decision of Deputy High Court Judge Mr David Lock KC and MF v FF [2025] EWHC 3306, a decision of Deputy High Court Judge, Mr David Rees KC which endorses the decision in SA)and submit that Article 7 preserves jurisdiction following a wrongful removal to a non-Contracting State.[43]In SA Deputy High Court Judge, Mr Lock KC, held at [83]–[84] that Article 7 is capable of application in such circumstances, emphasising its protective purpose. However, Article 7 does not transform a non‑Contracting State into a Convention State, nor convert such proceedings into Convention proceedings. This was reaffirmed by the Court of Appeal in Re O (Summary return: Non-convention country) [2025] EWCA 660.[44]The mother made no submissions on the Convention analysis. In her written position statement she confirmed that the case proceeds under the inherent jurisdiction, and in oral submissions she deferred to the legal frameworks articulated by the father and the Guardian.[45]In circumstances where jurisdiction is clearly established under domestic law by reference to habitual residence and the inherent jurisdiction, it is neither necessary nor appropriate to make a declaration under the 1996 Hague Convention. I therefore decline to do so.

THE INHERENT JURISDICTION: ANALYSIS

[46]In his written skeleton argument, Mr Hepher, counsel for the father states that he brings his case under the inherent jurisdiction to seek the children's return to England, noting that the court had proceeded on the basis that it had primary welfare jurisdiction and that the children were habitually resident in England at five previous hearings.[47]It was only at the sixth directions hearing on 14 April 2026, six months after the application was issued, that the mother, for the first time two and a half weeks before the final hearing, sought, through her counsel to challenge jurisdiction.[48]In non-Convention cases, the applicable principles are found in Re J (A Child) [2006] 1 AC 80 (HL); [2005] UKHL 40; Re NY (A Child) [2019] UKSC 49; [2019] 2 FLR 1266 and Re O (Summary return: Non-convention country) [2025] EWCA 660 (the case was similarly brought by way of a C66 application under the inherent jurisdiction).[49]It is of note that in Re NY the court stated, per Lord Wilson: - “44. … There is no law which precludes the commencement of an application under the inherent jurisdiction unless the issue “cannot” be resolved under the 1989 Act. Some applications, such as for a summary order for the return of a child to a foreign state, can be commenced in the High Court as an application for the exercise of the inherent jurisdiction. But then, if the issue could have been determined under the 1989 Act as, for example, an application for a specific issue order, the policy reasons to which I have referred will need to be addressed. At the first hearing for directions the judge will need to be persuaded that, exceptionally, it was reasonable for the applicant to attempt to invoke the inherent jurisdiction. It may be that, for example, for reasons of urgency, of complexity or of the need for particular judicial expertise in the determination of a cross-border issue, the judge may be persuaded that the attempted invocation of the inherent jurisdiction was reasonable and that the application should proceed. Sometimes, however, she or he will decline to hear the application on the basis that the issue could satisfactorily be determined under the 1989 Act.”[50]The elements of complexity here are that the children are currently accommodated by children’s services in Jersey and care proceedings are on foot there in relation to all the children, and that Jersey occupies an unusual place in terms of the applicability of the Conventions.[51]Whether the case is one treated as under the inherent jurisdiction or by reference to section 8, the overall analysis is much the same:47. Where an application for the same order can be made in two different proceedings and falls to be determined by reference to the same overarching principle .of the child’s welfare, it would be wrong for the substantive inquiry to be conducted in a significantly different way in each of the proceedings.48. Of course, when in each of the proceedings it is considering whether to make a summary order, the court will initially examine whether the child’s welfare requires it to conduct the extensive inquiry into certain matters which it would ordinarily conduct. Again, however, it would be wrong for that initial decision to be reached in a significantly different way in each of them.”[52]If, as the father contends, this is a case under the inherent jurisdiction, the test for jurisdiction is not habitual residence, but the best interests test. As the Court of Appeal stated in Re O (Summary return: Non-convention country) [2025] EWCA 660, an application for a summary return of a child to a non-Hague Convention country under the inherent jurisdiction of the High Court is to be determined simply and straightforwardly by what is in the child’s best interests (Re J at [18], [25], [28], [29] and [32]).[53]The Court of Appeal stated at [54] that a

judge must undertake:

“…a swift, realistic and unsentimental assessment of the best interests of the child, leading, in proper cases, to the prompt return of the child to his or her own country, but not the sacrifice of the child's welfare to some other principle of law”
. Ormrod LJ in Re R (Minors) (Wardship: Jurisdiction) (1981) 2 FLR 416, at 425.[54]The requirement for the Judge to undertake this “swift and unsentimental decision”, rooted firmly in welfare, was reinforced by Baroness Hale in Re J at [31] and [41].[55]Further guidance as to the principles are set out in Re O:55. In determining a non-Convention summary return application, there is no ‘warrant’ to apply the principles of the 1980 Hague Convention, either directly or by analogy (Re J at [22], [31] and [33]). While ‘habitual residence’ is a key jurisdictional component of the 1980 Hague Convention (see, inter alia, Articles 3, 4, 5, 8, 13 ibid.), and ‘wrongful removal’ part of the lexicon of the 1980 Hague Convention (see, inter alia, Article 1, 3, 7, and 12), Baroness Hale could not have been clearer in Re J that it would not be right to introduce such “technicalities” of concept and language into a non-Hague Convention summary return application.56. Re J provides the definitive statement of the law in this area. Lord Wilson in Re NY endorsed, by implication at least, all that had been said by Baroness Hale in Re J. This court has more recently confirmed (see again Re A and B at [71]) that within the two leading judgments in Re J and Re NY there is to be found all the “relevant, and sufficient, guidance to the court for the purposes of determining an application for the return of a child to a non-Convention State”. The court’s judgment in Re A and B opens with the statement:
“…. the exercise in which the court is engaged when the court is determining an application for a return order under the inherent jurisdiction or the Children Act 1989 ("the CA 1989") is not the same as when the court is determining an application for the return of a child under the 1980 Convention” ([3]). 57. It will be apparent from my resumé of the arguments above that counsel before us were not entirely agreedon whether the Judge was right to give any attention at all to the issue of ‘habitual residence’. To recap, Mr Gration submitted that Baroness Hale had been clear that there is “no place” for the technical concepts of ‘habitual residence’ in a non-Convention summary return case (Re J [22], [31] and [33]); Mr Tyler did not concede that habitual residence has no place at all in such a determination, given Lord Wilson’s remark in Re NY at [57] that there may be “need” for an “inquiry into the child’s habitual residence at the relevant date” when determining a summary return under the inherent jurisdiction. 58. The competing arguments focus on two passages from the respective judgments. In Re J,Baroness Hale said this at [22]: “There is no warrant, either in statute or authority, for the principles of The Hague Convention to be extended to countries which are not parties to it….”
Then, adopting what Buckley LJ had said in Re L (Minors)(Wardship: Jurisdiction) [1974] 1 WLR 250, at p 264 (“The judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country”), Baroness Hale had added at [33]:
“One important variable, as indicated in Re L, is the degreeof connection of the child with each country. This is not toapply what has become the technical concept of habitualresidence, but to ask in a common-sense way with which country the child has the closer connection. What is his 'home' country? Factors such as his nationality, where he has lived for most of his life, his first language, his race or ethnicity, his religion, his culture, and his education so far will all come into this.” (Emphasis by underlining added).
59. Attention then turned to what Lord Wilson later said within an important section of his judgment in Re NY,in which he outlined the eight questions which he considered the Court of Appeal should have asked itself in that case before substituting a return order under the 1980 Hague Convention with an order under the inherent jurisdiction. His second question was formulated ([57]) thus:
“[57] … the court should have considered whether the judge [at first instance] had made, or whether it could make, findings sufficient to justify the summary order. The only relevant finding made by the judge had been that on 10 January 2019, only seven weeks after her arrival in England, the child had retained habitual residence in Israel. Was that sufficient to justify the making of a summary order five months later? In the light of the policy in favour of themaking of substantive welfare determinations by the courtsof habitual residence, did there need to be inquiry into thechild’s habitual residence at the relevant date, which, in theabsence of an application, was in this case the date of theproposed order?”
(emphasis by underlining added). 60. Neither Mr Gration nor Mr Tyler were able to offer us an authoritative, let alone a uniform, explanation for how to reconcile these references to habitual residence in the two judgments. For my part, I do not treat Lord Wilson’s comments in Re NY as contradicting what Baroness Hale said in Re J at [31] and especially [33]. Lord Wilson was, in my judgment, simply advertising that, depending on the facts of the case, one of the many issues which a judge considering a summary return under the inherent jurisdiction may need to consider is the ‘habitual residence’ of the child, given the long-standing ‘policy’ that substantive welfare determinations should be made in the court of the child’s ‘native country’ (Re L). He was not saying that it was necessary to determine the children’s ‘habitual residence’ in order to establish a jurisdictional foothold for making the order sought.”[56]As such, Re O provides a clear answer to the question of what the court’s jurisdiction is when dealing with non-Convention territories, by reference to the child’s best interests, determining their ‘home country’ and their degree of connection and integration with the two territories involved.[57]In determining what is in the children’s best interests, whilst the court might consider where the child’s habitual residence was, it is not necessary to determine it. Hence, under the inherent jurisdiction, habitual residence may be relevant, but is not an essential matter to establish jurisdiction.

D. HABITUAL RESIDENCE, BEST INTERESTS, SUMMARY RETURN: ANALYSIS

[58]Accordingly, if, as I have found, the Conventions do not apply, then the court is dealing with a territory to which the Conventions do not apply vis-à-vis England and Wales, and the court falls back on the law as set out in Re NY at [56-64]: 56. First, the court, which was sitting on 18 June 2019, should have considered whether the evidence before it was sufficiently up to date to enable it then to make the summary order. The mother’s statement in answer to the claim under the Convention was dated 29 March 2019. In it she had devoted seven out of 67 paragraphs to assertions of the child’s habitual residence in England and of particular circumstances said to demonstrate how happy and settled she had become. In his statement in reply dated 11 April the father had joined issue with the mother’s assertions. The oral evidence given by the parties to the judge on 15 April had been limited to the issue of consent to the child’s removal from Israel and so had not addressed these matters. 57. Second, the court should have considered whether the judge had made, or whether it could make, findings sufficient to justify the summary order. The only relevant finding made by the judge had been that on 10 January 2019, only seven weeks after her arrival in England, the child had retained habitual residence in Israel. Was that sufficient to justify the making of a summary order five months later? In the light of the policy in favour of the making of substantive welfare determinations by the courts of habitual residence, did there need to be inquiry into the child’s habitual residence at the relevant date, which, in the absence of an application, was in this case the date of the proposed order?58. Third, the court should have considered whether, in order sufficiently to identify what the child’s welfare required for the purposes of a summary order, an inquiry should be conducted into any or all of the aspects of welfare specified in section 1(3) of the 1989 Act and, if so, how extensive that inquiry should be: see para 49 above. It might in particular have considered that the third of those aspects, namely “the likely effect on [the child] of any change in [her] circumstances”, merited inquiry.59. Fourth, the court should have considered whether in the light of Practice Direction 12J, an inquiry should be conducted into the disputed allegations made by the mother of domestic abuse and, if so, how extensive that inquiry should be: see para 50 above. The judge had made no findings about them. Instead, in accordance with the E case cited in para 12 above, he had, for the purposes of the claim under the Convention, made a reasonable assumption in relation to the maximum level of risk to the child arising out of any domestic abuse to be perpetrated by the father and had considered that such risk would be contained within acceptable limits by undertakings offered by the father, the enforceability of which in Israel the judge had not explored. Consideration should therefore have been given to whether, in a determination to be governed by the child’s welfare, the judge’s approach to the mother’s allegations remained sufficient.60. Fifth, the court should have considered whether, without identification in evidence of any arrangements for the child in Israel, in particular of where she and the mother would live, it would be appropriate to conclude that her welfare required her to return there.61. Sixth, the court should have considered whether, in the light of its consideration of the five matters identified above, any oral evidence should be given by the parties and, if so, upon what aspects and to what extent.62. Seventh, the court should have considered whether, in the light of its consideration of the same matters, a CAFCASS officer should be directed to prepare a report and, if so, upon what aspects and to what extent. It is noteworthy that in the L case discussed in para 43 above, a CAFCASS report had been prepared. It had been designed to ascertain the boy’s wishes and feelings and so was apparently made as if pursuant to section 1(3)(a) of the 1989 Act: see para 14 of Baroness Hale’s judgment. In her careful weighing, in paras 34 to 37 of her judgment, of the welfare considerations which militated both in favour of, and against, the boy’s return to Texas, Baroness Hale relied to a significant extent upon the content of the CAFCASS report.63. Eighth, the court should have considered whether it needed to compare the relative abilities of the Rabbinical Court in Jerusalem and the Family Court in London to reach a swift resolution of the substantive issues between the parents in relation to the child and to satisfy itself that the Rabbinical Court had power to authorise the mother to relocate with the child back to England: see para 34 above.64. The effect of the above is not to submerge efficient exercise of the inherent jurisdiction to make a summary order within an ocean of onerous judicial obligations. The linked obligations are obligations only to consider the eight specified matters. There is no need for us to contemplate what the proper outcome of the Court of Appeal’s consideration of them might have been. It is the fact that it failed even to consider them which yields the conclusion that it conducted no defensible analysis of the child’s welfare prior to its determination to make the summary order and which led this court to uphold the mother’s appeal.

Habitual residence

[59]Although that the test for habitual residence under the 1980 Hague Convention is set out correctly in the father’s skeleton argument, I am bound to apply the best interests test as set out in Re J, when considering whether the children should be ordered to be returned to England, with ancillary directions for liaison between the local authorities for transition of care from one to the other.[60]I am satisfied that I have the most up to date evidence including detailed assessments and information from representatives from Jersey children's services, as well as the recent evidence filed on behalf of both the mother and father.[61]Insofar as ‘habitual residence’ is a relevant factor (see paragraph [57] in Re O), I take into account the degree of connection of the children with each country but do not apply what has become the technical concept of habitual residence. Instead, I must ask in a common-sense way with which country the children have the closer connection. What is their 'home' country? Factors such as nationality, where they have lived for most of their life, education and integration.[62]All three children were born in England and had lived continuously in England until August 2025. Their schooling, healthcare, extended paternal family relationships and social life were centred in North Lincolnshire. England was the settled focus of their lives. Their enrolment in school, nursery and with a GP in Jersey was very slow and their attendance at educational placements has been poor. The children lived with their mother in a refuge in Jersey for some weeks initially, but have since been removed from the mother's care and now live in temporary foster care.[63]I note the detailed assessment undertaken by the Jersey Children’s Services dated 26 September 2025 and the Child Protection Conference of 2 October 2025. These contemporaneous and independent assessments record:• housing insecurity and refuge living;• a “massive transition” for the children;• difficulties settling into a new environment;• absence of a reliable protective support network;• concerns regarding the mother’s partner and substance misuse (toxicology testing later confirmed cocaine and cannabis use).[64]Jersey Children’s Services concluded that the threshold for significant harmhad been met, identifying neglect and emotional harm arising after the move. These findings are inconsistent with any meaningful integration in Jersey.[65]The Children's Guardian identifies England as the home country stating that the children were demonstrably ‘habitually resident’ here, balancing the competing connection and integration of the children in both Jersey and England at the time of the application, particularly in the light of the overall context in which the children were removed (without father's agreement) and in the absence of planning around it.[66]I am satisfied having considered the evidence that as a matter of fact, the children were also significantly and closely connected to England at the time of the application, this being their home country with which they have the greater integration and connection.

Best interests evaluation

[67]As to best interests, North Lincolnshire local authority filed a statement dated 24 April 2025 describing the impact of multiple moves and the disruption that the children have experienced since August 2025, noting this to be a period of significant instability. The children have been separated from their father, their mother, and suffered a number of placement changes wither a short timeframe, separation from one another and disruption to their primary caregiving relationships, routines and sense of emotional security. These are significant factors within the context of theirwelfare when I am considering whether to order a summary order.[68]I have in mind all aspects of welfare specified in section 1(3) of the Children's Act 1989: (3)In the circumstances mentioned in subsection (4), a court shall have regard in particular to— (a)the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (b)his physical, emotional and educational needs; (c)the likely effect on him of any change in his circumstances; (d)his age, sex, background and any characteristics of his which the court considers relevant; (e)any harm which he has suffered or is at risk of suffering; (f)how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs. (g)the range of powers available to the court under this Act in the proceedings in question.[69]Whilst I observe that choices concerning the children's ultimate placement will require further consideration and assessment, regardless of the allegations each parent makes against the other, the overwhelming magnetic welfare circumstances are, in particular, the likely effect on the children of the change in their circumstances and the harm they have suffered and are likely to suffer taking into account their needs (sections 1(3)(b)(c) and (e)).[70]Since these proceedings were issued, the landscape has markedly changed with the children now having been placed on protection plans and having been taken into care. Even though the mother is challenging the decision to remove the children, there is ample evidence that the children are suffering or at risk of suffering harm and that their home circumstances in Jersey were inadequate and/or neglectful. I also attach significant weight to the Guardian’s analysis, which is independent, child-centred, and consonant with the professional evidence.[71]I have also taken into account s1(3)(f) of the Act and the apparent difficulties that the parents have in meeting the children's needs (particularly in relation to the mother, as recorded in the assessments, the results of the drug testing and her own admissions regarding her mental health). These are significant which adversely impact the mother's parenting ability. I have also noted the issues identified about the father's mental health and his abilities to meet the needs of the children and those in respect of the paternal grandmother's recent difficulties in caring for the children whilst briefly in Jersey. Self-evidently, statutory agencies will need to investigate matters fully to identify where the needs of these children can be best met and where they should be placed. I make no findings or decisions in this regard.

Domestic abuse

[72]I should add that I have also taken into account those matters raised by the mother in respect of her mental health (including past trauma and her diagnosis of emotionally unstable personality disorder, bipolar disorder and substance misuse) and domestic abuse. She asserts that she left England with the children because of domestic abuse perpetrated by the father, and because of her own mental health difficulties. Those allegations are disputed and have not been the subject of findings in these proceedings. It is nevertheless necessary for the court to address the relevance of such assertions within the present decision.[73]In Re NY, Lord Wilson emphasised at [59] that, when considering whether to order a child’s return under the inherent jurisdiction, the court must have proper regard to allegations of domestic abuse, recognising the potential impact of such matters upon both the primary carer and the child. Lord Wilson explained that domestic abuse may bear significantly upon welfare, including: a) the circumstances in which the child was removed; b) the risks inherent in a return; and c) the broader assessment of the child’s best interests.[74]However, Re NY does not suggest that untested allegations of domestic abuse determine jurisdiction, nor that they displace the court’s obligation to consider the child’s welfare in the round. Rather, they are an important factor to be weighed within the overall evaluative exercise.[75]In the present case, I have not been invited, and it would not be appropriate on the current evidence, to make findings in relation to the allegations of domestic abuse. The issue before this court is not the determination of those allegations but the identification of the proper forum for their determination.[76]I have, however, taken the mother’s account at its highest. Even on that basis, the evidence demonstrates that the move to Jersey was unilateral, unplanned in terms of the children’s long‑term welfare, and resulted in significant instability for them. As the authorities make clear, including Re R (Children) [2015] EWCA Civ 674 and Re F (Habitual Residence) [2025] EWCA Civ 911, parental motivation—even where rooted in distress—does not of itself effect a change in a child’s habitual residence where it does not translate into stability and integration for the child.[77]In considering the welfare implications of return, I also have regard to the fact that a summary return order determines forum, not outcome. It will be for the courts of England and Wales, as the children’s home jurisdiction, to investigate and, where necessary, adjudicate upon the mother’s allegations in a procedurally fair and evidence‑based manner.[78]In those circumstances, I am satisfied that appropriate weight has been given to the mother’s allegations of domestic abuse within this decision. However, those allegations do not displace the conclusion that the children’s welfare is best served by the restoration of decision‑making to their home jurisdiction. To do otherwise—namely, to treat untested allegations as determinative of jurisdiction—would risk depriving the children of the benefit of a full welfare determination in the court most closely connected to their lives, which is precisely the concern identified in Re NY.

CONCLUSIONS

[79]Over six months have elapsed since proceedings were issued. The children’s experience since August 2025 has been marked by instability, escalating safeguarding concerns, and removal into care in Jersey.[80]As noted above, no party sought to adduce any oral evidence, no fact funding hearing was requested or necessary in order to determine the issues at hand. Thus, taking into account the factors outlined in NY I am satisfied that the evidential picture is sufficiently complete for the purpose of these proceedings.[81]The Guardian, Jersey Children’s Services and North Lincolnshire Children’s Services are agreed that England and Wales is the appropriate forum.[82]Applying Re J,Re NY, and Re O, I am satisfied that it is in the children’s welfare interests for them to be returned to England and Wales so that decisions about their future may be taken in their home jurisdiction. Delay would perpetuate harm.[83]In conclusion, I am wholly satisfied that applying the welfare test and having regard to the totality of the evidence, it is in the best interests of all three children that I should direct their summary return to England. The Guardian supports the summary return, emphasising the risks of delay and instability if jurisdiction remains unresolved. A summary return order is proportionate and necessary.[84]The court has been told that ‘in principle' North Lincolnshire will seek to issue public law proceedings ‘subject to any further legal issues'. Although I make no interim care orders, I am satisfied that there are reasonable grounds to believe that the threshold criteria under s.31(2) Children Act 1989 are met, having regard to the findings of Jersey Children’s Services. In those circumstances, the court has power under s.37 Children Act 1989to direct North Lincolnshire Council to investigate the children’s circumstances. I consider such a direction appropriate.[85]Jersey has confirmed that orders of this court may be recognised and enforced under Part I of the Family Law Act 1986, via theChild Custody (Jurisdiction) (Jersey) Law 2005, Articles 10–13; or the Royal Court of Jersey’s inherent jurisdiction. Jersey Children’s Services have committed to cooperation in effecting a safe transfer. That is my judgment.