Concept of habitual residence explored in significant Court of Appeal judgment: O (Summary Return: Non-Convention Country), Re [2025] EWCA Civ 660
A significant Court of Appeal decision was published on 21 May 2025, involving the abduction of two children by their mother from Nigeria to England.
Carmel Brown, Family Partner at Irwin Mitchell (assisted by Hannah Braisted) successfully represented the father at the appeal.
A brief background
This case concerned two children, a boy, and his sister. Their mother (M) and father (F) are both Nigerian and British. Their son has complex special needs.
The parents had both lived in England (F since 2004, and M since 2017). In December 2022, F moved to a country that will be referred to as ‘X’ for work. M and the children stayed in England but intended to relocate to be with F in the future.
In December 2023, M and the children relocated to X to live with the Father. At this point, F and M let out their flat in England and shipped their belongings to Nigeria and X.
The children and M spent a month in X with F before they all travelled to Nigeria to explore options to assist with their son’s development. F returned to X for work 2 weeks after arriving in Nigeria.
However, by Spring 2024, M was of the view that the marriage had broken down, and in June, she travelled with the children from Nigeria to England without F’s knowledge. F flew to England to try to find them and issued court proceedings. He asked the court to order the return of the children to Nigeria and made this application under the ‘inherent jurisdiction’ of the High Court. The children were found, and then a series of court hearings followed.
Following a final hearing in January this year, the judge decided that the children should be returned to Nigeria. M appealed this decision, and in the judgment handed down on 21 May 2025, M’s appeal was denied.
The appeal judges upheld the decision of the previous judge, so the children were returned to Nigeria.
What legal issues were raised in this case?
This case explores the difference in the court’s approach between international child abduction cases which fall under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (‘1980 Hague Convention Cases’) and those which don’t (‘Non-Hague Convention Cases’).
The 1980 Hague Convention provides a legal mechanism to facilitate the quick (‘summary’) return of a child who has been wrongfully removed from one signatory country to another signatory country. The ‘left behind’ parent will not have consented to the removal, and they will then issue court proceedings to have the child returned.
When a child is taken from a non-Hague country (such as Nigeria) this legal mechanism can’t be used, and instead the parent must make an application under the inherent jurisdiction of the High Court for the return of the child.
This means that when making decisions about whether a child should be returned from England to the country they were taken from, the factors which the court needs to consider are different, depending on whether the original country is a signatory of the 1980 Hague Convention or not.
With 1980 Hague Convention cases, the court must decide where the child is habitually resident, and (subject to various defences of the abducting parent) it will order an order for the child to be returned to that country.
The court’s approach in Non-Hague Convention cases is different, and the court considers where the child’s ‘home country’ is rather than their habitual residence. The child’s welfare is paramount, and the court will make a decision which they decide is in the child’s best interests. The starting point usually being that it’s best for the child to be returned to their home country, and for parenting disputes to be resolved there.
What did the Court of Appeal decide?
Following the final hearing in January, the judge conducted an in-depth analysis of habitual residence and decided that the children were ‘habitually resident’ in Nigeria, and that it was in their best interests to be returned. She made the decision based on various factors, including the fact that they were settled in Nigeria, having had their lives packed up in England and cut their ties to this country. Their daughter was attending a local school in Nigeria, and their son was being supported with therapy at home.
In her appeal, M argued that the judge had been wrong to focus on the children’s habitual residence, claiming that this concept was relevant only to 1980 Hague Convention cases. Given this was a non-Hague case, M argued, this concept didn’t apply. When making decisions about whether to return a child to a non-Hague country under the inherent jurisdiction of the High Court, the court must simply to what is in the child’s best interests, and if it would be best for them to be returned to their ‘home country’.
However, the appeal judges said that the judge was able to use the concepts of habitual residence and the various considerations to inform her decision about where the children’s ‘home country’ was. The Court of Appeal found that despite the fact that the original judge had given ‘undue prominence to the issue of habitual residence’, her decision-making was still sound, and based on her finding that it was in the children’s best interests to return to a country where they were settled. She had used the habitual residence concept to analyse the facts of the case, which had helped with her overall assessment of what was in the children’s best interests.
This Court of Appeal decision provides a helpful analysis of how the concept of habitual residence can be useful to explore when making decisions about where a child’s ‘home country’ is in Non-Hague Convention cases such as this. A child’s habitual residence can help the court to make decisions concerning their welfare, as ‘one of the range of relevant factors in [the judge’s] overall welfare analysis.’
Just because the concept of habitual residence does not technically need to be applied when making return decisions in this kind of case, the factual analysis which the judge used was still relevant, and helped to determine that Nigeria was the children’s ‘home country’. The children will now be returned to Nigeria, and we are thrilled on behalf of F with the outcome of this case.
Carmel Brown, Partner, said: “It has been an understandably difficult time for my client, but I am very pleased the outcome arrived at by the Judge at the first instance has been upheld and recognised as being the right decision in the best interests of these two small children”.
Will Tyler KC, of 36 Family, who represented the father through Irwin Mitchell in the Court of Appeal, adds:
‘This is an important judgment, which clarifies the sometimes confusing distinction between the approaches the courts must apply in Hague as opposed to non-Hague return applications. It is also a great result for our client, the father, whose children’s best interests, the High Court and the Court of Appeal have recognised, lie in being returned to Nigeria.’
