KPW v MJQ

1. This is an application under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the ‘Hague Convention’) in respect of a 3-year-old girl to whom I shall refer as ‘Harriet’.

2. Harriet was brought to England by her mother (‘Mother’), from Mexico, on 26 May 2025. Harriet’s father (‘Father’) says it was agreed that Mother would bring Harriet to Alaska, by no later than 1 September 2025. It is common ground that by 24 July 2025 Mother had resolved not to do so. For the purpose of Article 3 of the Hague Convention, I take this as the relevant date, i.e. the date of retention of Harriet.

3. Father contends that, immediately before Harriet’s retention in England, Harriet was habitually resident in the United States, and Father seeks an order that she be returned to the United States. Mother opposes that application, arguing that Harriet was not, at the relevant time, habitually resident in the United States; that Father consented to, or acquiesced in, Harriet’s removal to and retention in England; and that Harriet would be at grave risk of harm if Harriet were to be returned to the United States.

4. The application was listed before me for a final hearing, with a time estimate of two days. In the event, I decided on the first day that the application would be dismissed on the grounds that Harriet was not habitually resident in the United States on the relevant date. I indicated that I would provide written reasons. These are those reasons. A preliminary question: return to a third state?

5. In the skeleton argument of Ms Amiraftabi, Counsel for the Father, Father raised for the first time a possibility not canvassed previously in these proceedings: If the court finds that [Harriet] was habitually resident in Mexico at the relevant date, it is submitted that her ongoing retention in England remains wrongful. It is submitted that the court still has jurisdiction to return [Harriet] to Alaska. … The father does not seek a return to Mexico for practical – neither party live there, has a home or income – and safety reasons. For the same reasons he would oppose any return or relocation to Mexico. Any return would have to be to Alaska where the father lives and works, and where he can accommodate and support [Harriet] and the mother if she chooses to return, and where the family have extended support.

6. I raised with the parties at the outset of the hearing whether this argument, which I shall call the ‘alternative argument’, should be open to the Father, given the very late stage at which it was raised.

7. The first concern I raised with Ms Amiraftabi was that this application has proceeded on the implicit assumption that if Father cannot show that Harriet was habitually resident in the United States on the relevant date, then his application must fail. As a result, there has been no evidence nor agreement about Mexican law, addressing the question of Father’s rights of custody if Harriet was habitually resident in Mexico.

8. Second, and in practice a more significant concern, was that an application to return Harriet to a different state to that in which she had been habitually resident – a ‘third state’ – raised questions which the case management of this application had not prepared the parties, or the court, to address.

9. As a matter of law, the question whether there is power under the Hague Convention to return a child to a third state is not free from doubt. In O v O [2013] EWHC 2970 (Fam) , [2014] Fam 87 , Keehan J held that the power did exist. In In re B (A Child) (International Centre for Family Law, Policy and Practice intervening) [2020] EWCA Civ 1187 , [2021] 2 FLR 1 (‘ Re B ’), Moylan LJ also expressed the obiter view (at [104]-[115]) that there is such power, but Baker LJ and Phillips LJ declined to express a view on what they regarded, respectively, as a ‘ complex and finely balanced ’ and ‘ difficult ’ question.

10. Assuming, however, that there is such power, it is an unusual one, and must be exercised with caution. In O v O , Keehan J was faced with a situation where parents had agreed to leave Australia with their children and travel to the United States, but en route the father diverted, taking the older child to England without the mother’s consent. Keehan J ordered that the child should be ‘returned’ to the United States, the place where both parents had agreed, immediately before the wrongful removal, the child should live. In S (A Child)(Hague Convention 1980: Return to Third State) [2019] EWCA Civ 352 , [2019] 2 FLR 194 , without deciding whether the power existed, Moylan LJ overturned the decision of the first instance judge to ‘return’ to Hungary a child who had been wrongfully removed from Germany, holding that it was ‘ in effect, a relocation order ’ and ‘ a welfare determination but one made without the judge having undertaken a welfare assessment ’: at [57] and [59]. Consistently with this, in Re B , Moylan LJ expressed the obiter view at [117] that: Clearly, any such power must be used with considerable care so that it does not procure an effective relocation without any concomitant welfare inquiry. It is to be used only when it is, in effect, procuring the child’s return. The most obvious example when it might be used is when the child is being returned to his or her primary carer. Another example might be when, as in this case on the judge’s determination of habitual residence, the family has moved to new state but has not yet become habitually resident there.

11. The concern I had was that what was now being sought by Father was, indeed, a relocation order, but without the court having the evidence necessary to conduct a welfare assessment. This was not a case (as in O v O at [65]) where the court might summarily conclude that it was ‘ utterly absurd ’ that Harriet should be returned to Mexico. Nor did the parties agree that, if Harriet were to be returned somewhere, it was better that she be returned to the United States than to Mexico. This was also not a case where it was plain that Harriet should be returned to the care of the ‘left-behind’ parent, in whatever country that parent might be living. On the contrary, it was common ground that Mother would travel with Harriet wherever Harriet was sent, and Mother’s strong preference would be that, should any return order be made, it would send Harriet to Mexico, not the United States. Moreover, there were powerful reasons why Mexico might well be the more suitable country to which Harriet should return, including that Mother has the right to live and work there, which she does not in the United States.

12. Father indicated that if I were to conclude that I could not decide this alternative argument if it arose, then I should adjourn this argument (if his primary argument failed) to allow the necessary evidence to be obtained. However, I consider that such an adjournment would be unjustified. If Father does not seek a summary return to Mexico (and he does not: see paragraph 5 above) then, if I find that Harriet was habitually resident in Mexico, what he seeks is not, in practice, a summary order at all. It is a relocation order, which would require a full assessment of Harriet’s welfare of a sort that has no place within proceedings under the Hague Convention.

13. For these reasons, I directed that I would not allow Father to advance the alternative argument in the context of these proceedings. Accordingly, if Father could not show that on the relevant date Harriet’s habitual residence was the United States, Father’s application would fail and be dismissed. Habitual residence

14. I turn, then, to the first – and, in the event, determinative – substantive issue for my decision, namely whether, immediately prior to the retention of Harriet in England by Mother, Harriet was habitually resident in the United States. The law

15. A summary of the principles to be applied in determining habitual residence can be found in the judgment of Moylan LJ in Re F (A Child) (Habitual Residence) [2025] EWCA Civ 911 , [2026] 1 FLR 89 :

57. In conclusion, I start by reiterating part of what Black LJ said in Re J , namely first that there is no “prescribed route” and not “only one way in which to approach the making of a finding of fact about habitual residence” and secondly that “the scope of the enquiry depends entirely on the particular facts of the case” with the nature and extent of the analysis depending on the circumstances of the particular case. As with any judgment, what is important it that there is a sufficient analysis and explanation of the court’s determination.

58. 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 , at [54], “guidance provided in the context of one case may be transposed to another case only with caution”. With those caveats, I set out the following elements (which are not intended to be exclusive) drawn from the cases: (a) “The identification of a child’s habitual residence is overarchingly a question of fact”: Re B , at [46]. It is “focussed on the situation of the child”: Re A , at [54(v)] and Re R , at [17]. It is an issue of fact which requires the court to undertake a sufficient global analysis of all the relevant factors. There is an open-ended, not a closed, list of potentially relevant factors; (b) As set out, for example, in Proceedings brought by HR , at [41]: “In addition to the physical presence of the child in the territory of a [member] state, other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent”; (c) Factors of relevance, as set out in Proceedings brought by HR , at [43], and reflected in many other domestic cases, include: “the duration, regularity, conditions and reasons for the child’s stay in the territory of the different [member] states concerned, the place and conditions of the child’s attendance at school, and the family and social relationships of the child in those member states”; (d) The intentions of the parents are also a relevant factor and there is no “rule” that one parent cannot unilaterally change the habitual residence of a child: Re R , at [17]; (e) As set out in Re R , at [16], it is “the stability of the residence that is important, not whether it is of a permanent character” but there “is no requirement that the child should have been resident in the country in question for a particular period of time” because habitual residence can be acquired quickly: e.g. A v A , at [44]; (f) The “degree of integration of the child into a social and family environment in the country in question” is relevant, Re R , at [17]. It is clear that “full integration” is not required, Re B (SC) at [39], but only a degree sufficient to support the conclusion, when added to the other relevant factors, that the child is habitually resident in the relevant state; (g) The relevant factors will reflect the age of the child (see Mercredi v Chaffe [2012] Fam 22 , at [53]-[55]; A v A , at [54(vi)], and Re LC , at [35]). Accordingly, “The social and family environment of an infant or young child is shared with those (whether parents or others) on whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned”: Re A , at 54(vi); (h) The court is considering the connections between the child and the country or countries concerned: A v A , at [80(ii)]; Re B (SC) , at [42]; and Proceedings brought by HR , at [43]. This is a comparative analysis as referred to, for example, in Re M , at [60]; Re B (EWCA) , at [86]; and Re A , at [46]. As observed by Black LJ in Re J , I repeat: “What is important is that the judge demonstrates sufficiently that he or she has had in mind the factors in the old and new lives of the child, and the family, which might have a bearing on this particular child’s habitual residence.” An example of this is seen in Re B (SC) in which Lord Wilson, at [49]-[50], referred to the factors which pointed to the child having “achieved the requisite degree of disengagement from her English environment” and those which pointed to the child having “achieved the requisite degree of integration in the environment of Pakistan”. The relevant facts

16. Mother was born in England, and is a British citizen, but left the UK in her late teens. She lived in Spain, and then in Costa Rica, before settling in Mexico in about 2015. In 2020, she met Father in California. Father was born in Alaska and is a US citizen. From about October 2021, they lived together in Mexico, marrying there in late 2022. Both parents hold Mexican residence cards, giving them the legal right to live and work there. In January 2023, Harriet was born in Mexico. Harriet holds both US and UK citizenship. Mother’s evidence is that Harriet is also entitled to Mexican citizenship, by reason of her birth, though that is not agreed by Father.

17. In about November 2023, after a frightening experience during the hurricane season in Mexico, the parents decided that they should move to Alaska. There is a dispute between them as to whether the decision was for a permanent re-location, or only a seasonal one, with summers in Alaska (during the hurricane season in Mexico), and winters in Mexico (when it is very cold in Alaska). In anticipation of the move to Alaska, the parents took various preparatory steps, including registering Harriet’s birth with the US Consular Service, and obtaining a US passport for her.

18. One of the steps taken in anticipation of moving to Alaska was for Mother to apply for a green card, a permanent residency card that would allow her to live in the United States, work without needing a work visa, and in due course, apply for citizenship. Previously, Mother had spent time in the United States under the ESTA scheme, which permits leisure and business travel for citizens of certain countries (including the UK) for up to 90 days at a time, but does not give any longer-term residency right nor any right to work. Applying for a green card had a number of consequences. In particular, if the application succeeded, it would enable Mother to spend indefinite periods in the United States without the repeated need to leave to ‘reset’ the 90-day permission. However, applying for a green card also indicated to the US border authorities that Mother wished to immigrate, which might reduce the chance that they would allow her to enter the country at all, for fear she would overstay.

19. In early April 2024, the family moved to Alaska, to the home of the paternal grandfather. As I have indicated, Father says that the intention was for Alaska to become their permanent home. The family took with them their pet cat and pet dog. Father found a full-time job, and the paternal grandmother, who had been living in California, also moved in, to be near her granddaughter. About a month after the family arrived, Mother made social contact with the wife of Father’s employer, whom I shall call ‘Ms K’. Ms K has provided a statement saying that Mother told her that the family ‘ wanted to stay in Alaska and start a life here ’. Ms K exhibits a message from Mother from July 2024, when Mother was visiting England with Harriet, which includes ‘ I really hope to see you when we get home for a proper catch up ’. Another message, from October 2024 – at the end of the summer, when the family were travelling back to Mexico – reads ‘ Love ya!! Can’t wait to come back and get a truck and create a proper base ’. Father says this reference to ‘ home ’ and to a ‘ proper base’ shows an intention for Alaska to be the family’s permanent home. Father also notes that there was talk of Mother starting a bakery business, and that she won a prize for her baking in the Alaska State Fair, and that ‘ on a couple of occasions ’ Mother and Harriet attended playgroups and activities organised by the local church. Mother and Father looked for houses to purchase and, when they travelled to Mexico in October 2024, left behind many belongings in Alaska. Father relies on a statement from the paternal grandfather that he understood, when the family left in October 2024, that they would be returning to live in Alaska in April 2025, and intended then to secure a permanent place to live as a family there. Father also relies on an application made in Harriet’s name to the State of Alaska for a Permanent Fund Dividend, although it is unclear to me what declarations were made to support that application, or whether Harriet was in fact eligible when, on any view, she was not resident in Alaska before April 2024.

20. By contrast, Mother emphasises that she and Harriet had never been to Alaska before, and says she saw the move as a temporary one – only for the summer months. She points to a Facebook post from the paternal grandmother, dated 14 April 2024, reading ‘ [Father], [Mother] and [Harriet] are in Alaska for the summer!!! What a grand adventure!! ’, and to a voice note Mother sent a friend, on 20 April 2024, in which she explained why they had come to Alaska – ‘ We just got a bit burnt out with Mexico… I think we just had a bit too long there… ’. The voice note continues: So we’re just staying up here for the summertime so that [Father] can get some work up here in Alaska, like earns much better. So yeah, we’re just going to save up over summer and then the plan is go back to our little town in the winter because we’ve been doing sushi, like business, and he and it’s been going really, really well, like we got kind of quite well known in the town, like everybody loves it. So I think it could be quite lucrative but of course there’s only people there really in the winter, like summers quite gnarly to be there because it’s just like super hot and no tourists. So yeah, when it cools off a bit, we’re going to go and do the sushi in winters and then probably do like the nomadic life summer season and winter season and then come back here and earn over the summer. So that’s exciting.

21. Mother says that she did not form any real friendships in Alaska, noting that the WhatsApp messages with Ms K show how infrequent their communications were, with long gaps between quite short messages. She says the only people she felt close to in Alaska were Father and Harriet. She had no bank account, no health insurance and thus limited access to healthcare, nor any money in her own name. She had limited access to a car because Father used it for work. She was uncomfortable with what she felt was a patriarchal Alaskan culture. Although there was discussion about buying a property in Alaska, that was with the idea that it would then be rented out in the winter months when the family were in Mexico, or bought as an investment and then ‘flipped’ – which is shown by messages sent between Mother and Father from the summer of 2024 with one property captioned ‘ Mortgage and airbnb? ’ and another ‘ Flipper ’. Mother emphasises that while the family were in Alaska the connections to Mexico had not been lost, with many of the family’s belongings in storage units there, and the family car in a long-term car park.

22. In October 2024, as I have indicated, the family moved again, back to Mexico. They returned to Lo de Marcos, a small town on the Pacific coast where they had lived between December 2023 and April 2024. Father says this was not a stable situation. The parents took a 6-month tenancy on a property, intending to return to Alaska in early May 2025. He says the purpose of the trip was to enable Father to sell the family car that was stored there, but also to enjoy the weather. The family dog came with, but the family cat was left in Alaska. Father had arranged for his job in Alaska to be held open for him. In Mexico, Father’s work was more limited than in Alaska, running a ‘pop-up’ sushi delivery business which was sold once a week in a local bar. The family had no relatives living in Mexico, and Father says they had no close friends there.

23. Mother describes the period in Mexico somewhat differently. She says that when the family returned to Mexico, they took up their previous life. Father’s sushi delivery business was a continuation of the business he had run in the previous season, advertised over the same Facebook page as he had done previously, and he was invited to appear in the local food festival as he had done the previous year. Mother says she and Harriet did have friends locally, although, like them, these tended to live there only seasonally. In early 2025, Harriet had celebrated her 2 nd birthday with a party on the beach, to which her friends and their parents were invited.

24. From about December 2024, the parents’ relationship deteriorated rapidly. From this time, it seems that longer-term plans shifted repeatedly. Although the parents, commendably, were both thinking in terms of what was in Harriet’s interests, they struggled to find a solution that would work for everyone. Mother browsed properties for sale in Alaska again, but also arranged storage facilities to enable possessions to be kept in Mexico until the following year, and discussed with the landlady of their apartment the possibility of renting it again later in the year. In April 2025 they turned to a family friend, whom I shall call ‘Ms J’, to help with informal mediation. I have a statement from Ms J, who says that (in translation) ‘ When things were going well in their relationship… the couple had planned to buy a property in Alaska and live there during the summer, then spend the winter in Mexico to get away from the cold weather ’. But, says Ms J, by April 2025, Mother did not want to return to Alaska without a green card, especially given her need for independence as the marriage broke down. Ms J says an agreement was reached in late April, by which Mother would take Harriet to England for two months, then to Alaska for two months, and then ‘ after that, the family planned to return to a town on the Mexican coast during the winter ’. Mother has also adduced evidence from a nanny who cared for Harriet in Mexico, ‘Ms C’, who says (in translation): ‘ According to what they told me, their intention was to return after a few months, either back to Lo de Marcos or somewhere else in the Caribbean, where [Mother] has friends ’. Father disputes whether any agreement was actually reached. However, I have been shown a transcript of part of a discussion between Mother and Father on 15 May 2025 which evidences a range of possible plans being discussed. In my judgment, the transcript, combined with the evidence of Ms J and Ms C, and a manuscript note of 15 May which has been initialled by both parties, suggests that there was some limited agreement – namely that, assuming the green card had been approved by mid-July, Mother would bring Harriet to Alaska by 1 August, spend two months there until 1 October, and then the family would move to Mexico for the winter where Harriet would be enrolled in a school.

25. Father emphasises that the transcript shows that, in the course of the 15 May 2025 conversation, Mother said that she was ‘ sick of being in the middle of… nowhere and having no community, no friends. Like, it’s just not the life I want to live anymore ’. This, Father argues, shows that Mother was not integrated socially in Mexico, contrary to her case. However, in my judgment, this part of the conversation was about Mother being unhappy only in Lo de Marcos. Earlier in the conversation, Mother said that ideally she would live in Tulum, on the Caribbean coast of Mexico, where she had a support network, work connections, and her former boss who could help her. A little later, Father said that ‘ we have to come back here ’, but perhaps not Lo de Marcos where ‘ too many people know our shit ’. Mother agreed ‘ I would definitely be much happier not in [Lo de Marcos] ’, to which Father replied ‘ Yeah. Yeah, fine with that… But we’ll be coming back to this area for sure. I’m thinking Sayulita ” (Sayulita being a town a short distance south than Lo de Marcos). A little later, Father said: ‘ So we’ve agreed as a crew, as a unit, that we were going to raise our child on the Pacific Coast, correct. So that is where I’m going with this is I would like us if we’re going to do co-parenting to stay on this side ’, to which Mother replied ‘ OK ’. In my judgment, Mother saying that she was sick of ‘ having no community ’ was a comment on how she had grown to feel about life in Lo de Marcos. This was not an indication that Mother was unwilling to live in Mexico generally. Analysis of the facts

26. In my judgment, if a family unit chooses to spend winters in Mexico, and summers in Alaska, without having a permanent base in either, it is perfectly possible that their habitual residence will change each time they move. They may have work, and a social network, and belongings in each location. Each time they move, their new residence may be settled, as they integrate, or re-integrate, into the community. In each location, their residence may not be permanent, but may be stable.

27. There is no doubt that, prior to April 2024, Harriet was habitually resident in Mexico. She had been born there and lived there her whole life, with only some short trips abroad. Harriet spoke both Spanish and English. Her mother had been living in Mexico since 2019 and her father since 2021, and both held Mexican residence permits. While the family unit had not settled in one particular location in Mexico, they had always lived in that country.

28. When Harriet’s immediate family moved to Alaska in April 2024, it is, in my judgment, doubtful whether they became habitually resident there. They were living there for only a short while, and Mother and Harriet had never lived there before. The family had left belongings in Mexico. Their longer-term plans were unsettled beyond the end of the summer. Although Father and Harriet are both US citizens, Mother, who took primary responsibility for caring for Harriet, had no right to live and work there. Mother had applied for a green card, but that application had not been decided. They were living with relatives, and Mother and Father neither owned nor rented any property. Father may have been thinking of living permanently in Alaska, as he says, but the contemporaneous evidence (see at paragraph 20 above) shows that Mother was only thinking in terms of taking a temporary break from Mexico over the summer, before returning to the town in which they were ‘ quite well known ’. Mother was not settled in Alaska, lacking any real friends or social group, or basic independence such as her own bank account or living in her own space away from the Father’s family.

29. By contrast, after the family moved back to Mexico in October 2024, I have no doubt that Harriet was habitually resident there. This was a return to the country with which she, and her parents, were most familiar. I think it likely that Harriet’s habitual residence never shifted, but even if there was a time when she was habitually resident in Alaska, she was no longer habitually resident there once the family returned to Mexico. They were back living in a country in which they were all well integrated, and were largely disengaged from their life in Alaska. The whole family had a right to live in Mexico, and the parents both had a right to work there. They had social connections around the country. Even though, by May 2025, Lo de Marcos was no longer where they wished to be, and there was a plan to return to Alaska over the summer, the parents were talking about returning to Mexico again later in the year. Father may have wanted to make a permanent move to Alaska, but that was not Mother’s settled intention, nor what they had agreed. Moreover, Mother still had no green card, and the surge in immigration enforcement in the United States increased her anxiety at the prospect of being there on the ESTA scheme. Mexico, not the United States, was the country with which Harriet had the closest connection.

30. At some point over the summer, after Harriet was brought to England in May 2025, Harriet’s habitual residence changed to England. However, I heard only limited argument on that because, as the case was framed, it makes no difference: what is clear, in my judgment, is that at the relevant date Harriet was not habitually resident in the United States. Conclusion

31. In circumstances where Father has failed to establish that Harriet was habitually resident in the United States on the relevant date, and I have not permitted him to advance his alternative argument based on habitual residence in Mexico, the Father’s application fails and is dismissed.