Background
The mother applied for an order requiring her five sons, aged 15, 14, 11, 9 and 4, to return from Kenya to live with her in England. The family had travelled from England to Kenya in July 2025. The mother maintained that the trip was a holiday and that the father wrongfully retained the children there from late August; the father said the family had planned a permanent relocation.
The evidence included one-way tickets, the shipment of belongings, preparations to furnish a Kenyan home, a Kenyan tenancy and efforts to enrol the children in local schools. The older children told a CAFCASS officer that they had understood the move to be permanent. The court also found that the father had subjected the mother to serious coercive and controlling behaviour. On 9 November 2025, while the mother was still in Kenya, he reported her passport lost, applied to renounce her British citizenship and prevented her from accessing her email account. After being removed from a flight on 16 November because her passport had been cancelled, the mother obtained emergency travel documents and left Kenya for the United Kingdom on 22 November.
The Court’s Holding
The court held that Article 7 of the 1996 Hague Convention can apply where a child is allegedly wrongfully removed to or retained in a non-Contracting State such as Kenya. Following the later of the conflicting first-instance authorities, the judge treated that issue as settled at High Court level.
On the facts, however, the children’s habitual residence had shifted from England to Kenya by mid-August 2025 at the latest. The move was intended to be permanent, both parents knew of that intention, and the family and children had become sufficiently integrated in Kenya. The children therefore were not wrongfully retained there in late August or at any other time.
Because the children were habitually resident in Kenya, the English court had no jurisdiction under the Hague Convention. It also lacked domestic jurisdiction under the Family Law Act 1986 because the children were not habitually resident in England when the mother applied in January 2026. The judge dismissed the application without deciding whether England or Kenya was the more appropriate forum or whether the requested return orders would serve the children’s best interests.
Key Takeaways
- Article 7 of the 1996 Hague Convention may apply to alleged wrongful retention in a non-Contracting State, but only if its factual requirements are met.
- Habitual residence depends on the child’s and family’s circumstances as a whole, including pre-planning, relocation arrangements, integration and, where appropriate, the child’s own understanding.
- Serious coercive control and abuse did not alter the jurisdictional result where the evidence established that the children had already become habitually resident in Kenya.
Why It Matters
The decision illustrates the distinction between findings of grave parental misconduct and the separate jurisdictional inquiry governing international children cases. Although the court made serious findings that the father had stranded and controlled the mother, jurisdiction still turned on where the children were habitually resident and whether any retention was wrongful.
It also adds High Court authority supporting the application of Article 7 to non-Contracting States, while showing that this principle does not preserve English jurisdiction once habitual residence has lawfully shifted abroad.