Case Update: Re CX (Jurisdiction: Wrongful Removal to Northern Cyprus) [2025] EWFC 27

1. The Father issued an application for a Section 8 child arrangements order on 24 September 2020 (hereafter referred to as “S8 proceedings”). This followed earlier proceedings that had concluded with a live with order in favour of the Mother and a spend time with order in favour of the Father;
2. At a remote hearing on 7 June 2021, The Mother and the Father reached an agreement as to allegations and the court recorded a number of agreed findings. The Mother claimed to attend the hearing from another part of the UK. Unbeknown to the Court, to the Father and to the Mother’s own legal representative, the Mother had Infact already travelled to TRNC with CX and attended the 7 June 2021 hearing remotely from TRNC;
3. On 9 August 2021, when it was still unknown where the Mother and CX were, the court made an order under the S8 proceedings that CX should live with the Father;
4. A position statement was drafted by Counsel for the Father in September 2021 which stated at the conclusion “ultimately therefore and for the avoidance of all doubt, F seeks the urgent return of CX to his care. He invites the Court to take all steps necessary to secure this”;

5. On 1 October 2021, the Court noted that it was believed CX was with the Mother in TRNC and that the Police had launched an investigation into CX’s abduction;
6. On 24 November 2021, a Circuit Judge directed the proceedings to be re-allocated to be heard by a judge of High Court level and shall be listed on the same date and before the same judge considering any application issued in respect of the child in the Family Division of the High Court;
7. The Father did not have legal aid in order to make an application to the High Court and so, after some delay, on 29 March 2022 the CG made an application under the inherent jurisdiction on the Father’s behalf for CX to be made a ward of court and for return orders (hereafter referred to as “inherent jurisdiction proceedings”);
8. At the time of the hearing on 27 January 2025, both the S8 proceedings and the wardship proceedings were ongoing.

1. Was the inherent jurisdiction application, an application within s1(1)(d) of the FLA 1986;

The inherent jurisdiction application was made by the CG on 29 March 2022 on behalf of the Father, as the Father did not have funding to make the application himself.

Poole J determined that the inherent jurisdiction proceedings do fall within S1(1)(d) and distinguished the present case from the case of A v A and Another (Children: Habitual Residence) (Reunite International Child Abduction Centre and Others Intervening) [2013] UKSC 60 [2014 in which Baroness Hale considered the application for a return order not to be a s1(1)(d) order because it was a wardship and return order, without more. Poole J found that the surrounding circumstances of this case demonstrate the application does fall within s1(1)(d) making reference in particular, to the following points:

1. The Father had an ongoing s8 application in the family court and after the wrongful removal of CX to the TRNC and before the application on 29 Mach 2022, the Father had secured a revised child arrangements order with a live with order in his favour (on 9 August 2021);
2. On 24 November 2021, the s8 proceedings were allocated to a High Court Judge in the Family Court to be heard at the same time as any hearings in relation to the child in the High Court. The s8 proceedings were closely linked to the inherent jurisdiction proceedings;
3. In the first order within the inherent jurisdiction application on 9 May 2022, it is recited that there is a lives with order made in the family court in favour of the Father;
4. The first order also refers to the return of CX to England and Wales so that the courts here can “continue” to make decisions about CX’s future welfare;
5. Whilst the CG’s application does not seek an order for CX to be placed in the care of any person on return, it is important to note that the application was made by the CG on behalf of the Father who had earlier filed a position statement in the family court seeking the return of CX to the jurisdiction and invited the court to make CX a ward of court, to make a return order and it ended “for the avoidance of all doubt, the Father seeks the urgent return of CX to his care. He invites the court to take all necessary steps to secure this” so the subsequent inherent jurisdiction application was indeed for CX to be placed in the Father’s care; and
6. At later hearings within the inherent jurisdiction proceedings, in order to entice the Mother to bring CX back to this jurisdiction, reassurances were given and recorded that CX would continue to live with her upon return and until any further orders were made in his best interests. That confirms that previously the Father had sought the return of CX to his care but changed his position so that at least he could secure CX’s return to the jurisdiction and then allow further consideration of his welfare needs.

2. Where CX was habitually resident on the dates of both applications;

It is not disputed for the S8 proceedings, CX was habitually resident in England and Wales on the date the application was issued.

CX’s habitual residence on the date of issue for the inherent jurisdiction proceedings (29 March 2022), was in dispute. The Mother argued that CX was habitually resident in the TRNC by this point. Father and the CG, disagreeing. The Court found that CX maintained his habitual residence in England by the date of issue, for the following reasons:

1. A key factor is that CX was wrongfully removed from the place of his habitual residence and had been taken to the TRNC in clandestine circumstances, evading justice in the form of the ongoing court proceedings, to live in effective exile with the Mother. Poole J noted in circumstances such as these it is difficult to achieve stability in a place of exile;
2. the move to the TRNC was far from an open, planned agreed decision to move to another country and the evidence before the court did not persuade Poole J that it was known from the outset that CX would remain in the TRNC for years ahead;
3. The Mother used subterfuge to prevent the authorities from knowing where CX was living and then refused or failed to engage with authorities who were trying to ensure that CX was safe and well. She was effectively “on the run” and taking CX with her;
4. Poole J considered that he had very little information about CX’s home in the TRNC by the end of March 2022;
5. There was insufficient stability and insufficient integration in social and family life in TRNC for Poole J to conclude he was habitually resident there by the time of 29 March 2022;
6. CX’s residence in TRNC was fragile and could have ended at any moment. His life there was precarious because his main carer was evading justice. Had events taken a different turn from the end of March 2022, CX could at any time have been removed from TRNC to another country or have been returned to England and Wales.
7. Poole J also notes that on 9 May 2022 (the first hearing in the inherent jurisdiction proceedings), Peel J recorded that on the evidence before him, CX was habitually resident in England and Wales both at the commencement of the proceedings and at the date of that hearing. There is little further information before the court now, that was not before Peel J on 9 May 2022 when those determinations were made.

Due to the determination Poole J then makes below, it was not considered necessary by Poole J to consider whether CX is now habitual resident in the TRNC.

3. Can jurisdiction be lost by CX’s habitual residence changing

In submissions and in the judgment itself, reference was made to the judgment of Peel J in H v R and the Embassy of the State of Libya [2002] 2 FLR 1301 (in particular para 40)  approved by the Court of Appeal in Re London Borough of Hackney v P and Others (Jurisdiction: 1996 Hague Child Protection Convention) [2023] EWCA Civ 1213 (with reference to para 116).

Poole J agreed with the position put forward on behalf of the Father and the CG that the date for determining jurisdiction for both sets of proceedings, is the date the relevant applications were issued and jurisdiction cannot be lost by habitual residence subsequently changing on the facts of this case. The reasons for Poole J’s determination are summarised as follows:

1. Article 5 and Article 7 of the 1996 Hague Convention provides circumstances whereby the habitual residence of a child can change to another contracting state and if so, jurisdiction follows with it. However, the provisions of Article 5 and 7 have no application to the present case because the TRNC is not a contracting state to the Hague Convention;
2. As Art 5 has no application, domestic law becomes operative which takes us back to the FLA 1986. Under FLA 1986, jurisdiction by reference to habitual residence is determined at “the relevant date” which, by S7(c), is the date when an application is made for an order to be made or varied, or if no application is made, the date when the court is considering whether to make or vary the order;
3. The domestic law under FLA 1986 makes no provision for the loss of jurisdiction upon a change of habitual residence and so “jurisdiction sticks” (para 51). There is no mechanism under FLA 1986 by which a change of habitual residence deprives the court of jurisdiction. If a child is habitually resident in England at the date when the application is made, the court has jurisdiction to make the relevant order whenever the order is made (para 50);
4. At Para 51, Poole J commented that if jurisdiction could be lost in these circumstances then a parent who wrongly removes a child from the jurisdiction, even during the currency of court proceedings, would know that if they were obdurate for long enough, then their actions could result in the court losing jurisdiction. As Peel J put it in H v R, there would be an opportunity for “unscrupulous abductors to take advantage of delay, or indeed to manufacture delay, so as to engineer a change in habitual residence”

As Poole J had determined that CX was habitually resident in England on the date that each of the relevant applications were made, the court continues to have jurisdiction in both sets of proceedings and therefore refused the Mother’s invitation to decline jurisdiction.

4. If the court retains jurisdiction, should the proceedings now be dismissed in any event as requested by the Mother

Poole J did not consider that the inherent jurisdiction proceedings were futile and declined to dismiss them on the basis their continuation sends a clear message that CX ought to be returned to this jurisdiction. CX should know that his Father has taken extensive steps to secure his return to England and the Court considers his return is required. The inherent jurisdiction allows the court to take practical steps to secure CX’s return when the circumstances are right and then to make arrangements in his best interests. Poole J refused the Mother’s invitation to dismiss the inherent jurisdiction proceedings but did agree to stay the proceedings generally, in order to avoid further hearings until something practical can be achieved to protect and enhance CX’s welfare.

In respect of the s8 proceedings, Poole J did dismiss these on the basis that they no longer serve a purpose, particularly in the circumstances where the inherent jurisdiction proceedings will continue.