Last month I attended an online hearing in Slough Family Court where the issue for the judge was whether the English court still had jurisdiction regarding a mother’s application, or whether family court proceedings should instead take place in Poland, where her son had moved with his father.
The mother had applied to vary a child arrangements order (CAO) while the child was still living in England, but the father and child moved to Poland before the date the hearing was listed.
At the hearing I attended, the child had been in Poland for about 10 weeks. The judge decided that England and Wales no longer had the jurisdiction to consider the mother’s application.
The timeline was:
August 2024: District Judge Harrison in Reading Family Court made a CAO regarding a boy, then aged 11, who had been living with his father for two years. The order was that the boy live with the father, who was given permission to relocate with his son to Poland. There was to be regular video contact with the mother and a visit by her twice a year. The mother didn’t agree with the way the hearing had been held or the outcome – she applied for permission to appeal but this was refused by the district judge.
As the months went by, the father didn’t move to Poland but the mother said the contact with their son wasn’t happening.
December 2025: the mother applied to vary the CAO. A hearing was listed for May 2026. The mother made a number of attempts to have an earlier hearing.
January 2026: the judge listed a short hearing in February to decide if the application was urgent.
February 2026: the father and the son moved to Poland. The judge adjourned the hearing to give the mother an opportunity to put her case that the English court still had jurisdiction. This was to be heard on the date listed in May.
May 2026: The mother argued that her son was still living in England when she applied to court in December and therefore her application should be heard here.
The law about jurisdiction
Under the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, articles 3 and 5, decisions about a child’s rights to residence and any restrictions on a parent’s parental responsibility are to be taken in the country where the child is habitually resident. Where there is a change of habitual residence, the courts in the new country of habitual residence have jurisdiction.
The 1996 Convention had been raised by the court with the mother and she had been given an opportunity to explain why Arts 3 and 5 didn’t apply, but all of the following points are based on reading I have done since I observed the hearing; they were not mentioned by the parties or the judge.
As indicated by the title of an article (freely available) by Nigel Lowe and Alison Perry published in April 2026 – Habitual problems in applying the concept of habitual residence of children – ‘habitual residence’ can be difficult to pin down. The article explains how the UK has moved from a ‘parental intention/dependency’ model to an ‘independent/integration’ model, reflecting a stronger emphasis on the child’s experience. In a leading Supreme Court case, In the matter of A (Children) (AP) [2013] UKSC 60 , Lady Hale said about habitual residence:
The test adopted by the European Court is “the place which reflects some degree of integration by the child in a social and family environment” in the country concerned. This depends upon numerous factors, including the reasons for the family’s stay in the country in question…
In my view, the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. [para 54]
In London Borough of Hackney v P & Ors [2023] EWCA Civ 1213, Mr Justice MacDonald in the High Court had said that the relevant date for habitual residence was the date of the hearing, but Lord Justice Moylan in the Court of Appeal disagreed. He said that the relevant date was the issue of proceedings, when the jurisdiction is first ‘invoked’. However, he acknowledged that between contracting states (i.e. countries signed up to the 1996 Convention) habitual residence might be lost or acquired during the proceedings, and that sometimes this might have happened because of delays, despite efforts by judges at efficient case management. So jurisdiction might shift while the case is being dealt with. Moylan LJ said that although the country of habitual residence might not need to be checked at every hearing, it would need to be checked when important decisions were being made.
A recent High Court case, Re G (A Child) (Jurisdiction: Habitual Residence following Lawful Relocation) [2025] EWHC 911 (Fam) is helpful here, because some of the facts are similar to the Reading case. In mid-2024 a father obtained permission to relocate from the UK to the US with his two daughters. He moved there two months later with one daughter, G, aged 14. G was unhappy and her mother applied on October 2024 to amend the order. There were court delays (not the parties’ fault) and the case didn’t go back to the judge until March 2025 by which time the judge (HHJ Raeside) said G would have become habitually resident in the US and was therefore no longer in the England and Wales jurisdiction. On appeal, the judge in the High Court, Mr Justice Harrison, decided that G’s habitual residence should have been considered as at October 2024. He said that where a child had been lawfully moved by a parent, habitual residence is to be decided on the date of a court application being issued, but that this jurisdiction can be lost once the child acquires habitual residence in the new country. There was considerable evidence about how unfamiliar the US was to G and how deeply unsettled she was. The judge said G had been exceptionally determined to return to England, completely against the wishes of her father. In these circumstances, her country of habitual residence had not changed. The judge was concerned about G’s welfare and ordered that she become a ward of court and be returned to the UK.
Both parents were litigants in person in the hearing I attended and I didn’t hear references to any case law.
The evidence in this case
There were some similarities between Re G above and the case I observed, because the child had lawfully moved following a court order, and there were delays between the original order allowing the relocation and the date the court was hearing about the other parent’s objections. However, there was strong evidence in Re G about the harm that being in the US was causing G. She had previously always lived in the UK and had been unexpectedly parted from her younger sister.
In the case I observed, I didn’t see or hear about any evidence that the child was unsettled in Poland. In fact, there was no formal evidence at all apart from a position statement by the mother that focused on the child still being in England when she applied to vary the existing English order, and the rationale for continuity of proceedings in the English court. In court, she said that she didn’t speak Polish well and she was upset when her ex-partner and their son emailed her in Polish instead of English. The father hadn’t filed any statement although he opposed the mother’s application. He explained the delay in moving on having to sell his house in England first.
The judge questioned the father about whether the child had started school and whether the father had anywhere to live in the UK. He replied that his son had started school in Poland in March and that he (the father) no longer had any accommodation in the UK. It might be assumed that there was some degree of integration into living in Poland as the child has lived with his Polish father for five years and presumably he knew back in 2024 that the court had endorsed the plan for him to move abroad. The father did say ‘all his life is in Poland now’. However, there was no real exploration of or formal evidence about the child’s wishes and feelings since he had moved, or indeed since the CAO was made in August 2024, or the impact of the transition on him.
I couldn’t work out why the contact ordered in 2024 wasn’t happening, but the details of contact set out had been rather vague – the direct contact was to be supervised, but the order didn’t say by whom. Presumably the father expected to be present. The mother said the order gave one parent complete control without any prospect of progress toward her rebuilding her relationship with her son and enabling him to have contact with his younger brother, who lives with her in England.
Impact of delays in this case
If we had a system that could have dealt with the mother’s December application within a few weeks, before the father moved, her application to vary the CAO would have been heard by Reading Family Court. She may have been able to provide evidence that the father was not complying with the contact arrangements. That in itself seems unlikely to have led to the CAO being drastically changed to transfer residence to the mother and stop the child moving to Poland. It had clearly been envisaged by the judge in Reading in 2024 that the child’s welfare needs would best be met by an order assuring that he would live with his father and move with him to Poland in the near future. The contact arrangements were based on that situation. If there has been a change of circumstances, these might now be considered by a Polish court, if the mother applies there.
The mother was very upset by the judge’s decision and said she believed she would never see her son again.
Legal blogging
Typically, although I had given six days’ notice that I was going to attend, I didn’t get a reply. I emailed again on the day and the video link came through at 1.55 p.m. The hearing was listed for 2 p.m. to 3 p.m. but didn’t start until 2.55. No reason was given. The judge, District Judge Godfrey, hadn’t drafted a transparency order. Instead of completing an order, emailing it to us, and briefly explaining the gist to the parties, she read out the entire TO template. I began to wonder if I should have offered to explain how it worked to save her the time but in retrospect I think she wanted to read through it for her own benefit anyway. Neither party objected to the order. The hearing then started at 3.20 and ended at 3.50. In my experience, courts in the south east of England are much harder to communicate with than other parts of the country, probably reflecting the heavy workloads and shortage of staff that their auto-replies complain of.
Image: thanks hpgruesen at Pixio – Creative Commons