High Court unable to establish habitual residence in care case affected by “fog of obscurity"

In London Borough of Barking and Dagenham v Mother & Ors [2025] EWHC 2889 (Fam) (05 November 2025), Mr Justice Williams concluded that while it was not possible to establish the habitual residence of the two children currently placed in England, they fell within the ambit of Article 6(2) of the 1996 Hague Convention (HC), and so the court had jurisdiction as it would under Article 5 1996 of the convention.

The case concerned three children, (C, E & M), aged 14, 12 and 10.

The care proceedings commenced in May 2025, when it came to the knowledge of the local authority that C had been left in hospital and that both C and M were in England with no one who was able to care for them; the father having been refused re-entry to England from France along with E.

The judge noted: “The mother's whereabouts was unknown; subsequently it came to light that she is in the Middle East having left the children in the care of the father in Africa in or about 2022 and not having seen them since.”

The hearing was listed to deal with jurisdiction.

In skeleton arguments, all parties ultimately agreed that the court had jurisdiction of some form ranging from that under Art 5 1996 HC to that under Art 11 1996 HC.

Outlining the unusual nature of the case, Mr Justice Williams said: “[…] The facts which can be established on a more probable than not basis are so limited and so general in nature that it is not possible to undertake the comparative evaluation of potentially competing countries of habitual residence. A fog of obscurity prevents any meaningful factual evaluation.

“Although extensive efforts have been made to collate information from the parents, the children, the state authorities in this country and through seeking information under Chapter V of the 1996 HC from the Netherlands and from relevant Embassies, the pool of evidence remains pitifully shallow, and the factual landscape remains obscured in fog.”

The judge outlined the following “facts” of the case:

• The father and mother are both Ugandan in origin.
• Between 2009 and 2015, the father and mother had four children – seemingly in Uganda.
• In early 2022, the mother left Uganda for the UAE to work.
• After the mother left, the father and the children went on to live in Tanzania and Kenya until early 2025 when he, C, E and M left for the Netherlands.
• The father and children probably arrived in the UK in April 2025 “although records only refer to the father and E arriving on that date”. Border Force records and the father suggest they came in order to seek medical treatment for C. They stayed with the father's ex, Ms O.
• In May, C was taken to hospital. The father and children visited her but by 27 May 2025 the father and E appeared to have left England and when they sought to return two days later Border Force refused them entry, as the father told them he was only here to seek medical treatment for C.
• The local authority issued proceedings the same day, ICOs were made and M moved to foster cares. When C was discharged from hospital in June 2025 she joined M in the foster placement.
• The following month, the local authority issued an application in relation to serious medical treatment of C. Since then, C has been under-going treatment. The hospital agreed to waive any charges.
• Since then, the children have remained living with foster carers. The father is believed to be back in Kenya with E. The mother has no right to enter the UK and would need to apply for a visa. The children both say they wish to return to live with their father.

Analysing the case, Mr Justice Williams said: “Extracting from this any clear sense of the place which ‘reflects some degree of integration by the child in a social and family environment' as at either the 29 May 2025 or the 7 July 2025 is not possible on the evidence before me.

“Although I am alive to Lord Wilson's guidance on interpretation of differing pathways I am ultimately left in such a state of uncertainty of where the children might have had some sufficient integration in a social and family environment as at the relevant dates that I am left unable to establish C, E or M's habitual residence.”

In respect of E, he concluded that the courts of England and Wales have no jurisdiction over him as he is neither habitually resident here, or present here or of UK nationality.

He continued: “In respect of C and M it not being possible to establish their habitual residence they fall within the ambit of Art 6(2) of the 1996 Hague Convention and so this court has jurisdiction as it would under Art 5 1996 HC.

“It is of course possible that as time passes by that the children might become sufficiently integrated into a social and family environment in England that they become habitually resident here and the fact of such integration may be relevant to welfare decisions although the potential transition from Art 6(2) jurisdiction to 'true' habitual residence jurisdiction will likely be of limited (if any) importance unless an alternative habitual residence jurisdiction emerges from the fog.”

Concluding the case, Mr Justice Williams said: “The court has the complete jurisdiction conferred by Art 6(2) and Art 5 (1) rather than an attenuated jurisdiction under Art 11 in respect of both C and M and the care and inherent jurisdiction proceedings should continue to their welfare stage.”

Lottie Winson