It is not permissible for court to “ride two horses” by repeatedly adjourning question of jurisdiction whilst seeking to progress case as if it does have jurisdiction, senior family judge rules
The Family Court has ruled that the court does not have substantive welfare jurisdiction in respect of a 1-year-old French national who was visiting the United Kingdom with her parents when she came to the attention of social services following a visit to the hospital.
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In London Borough of Redbridge v JL & Ors (Failure to Determine Jurisdiction) [2025] EWFC 292 (18 September 2025), Mr Justice MacDonald concluded that as proceedings were issued when the child (LL) was habitually resident in France, the English court does not have substantive welfare jurisdiction in respect of LL.
He added: “To be clear, it is not permissible for the court to seek to ride two horses by repeatedly adjourning the question of jurisdiction whilst at the same time seeking to progress the case as if it does have jurisdiction.” (judge’s emphasis).
The proceedings concerned LL, born in June 2024.
LL’s mother was born on La Réunion, an overseas French Department in the Pacific Ocean, in 1999. She is a French national. LL was born on La Réunion and is likewise a French national.
The father was born on La Réunion and moved to the United Kingdom when he was 16 years old with his family.
The judge noted: “His mother, father and siblings live in this jurisdiction. The father has settled status in the United Kingdom under the EU Settlement Scheme. The father applied for and was granted Settled Status as a French national in 2023. His EU settled status in the United Kingdom is without limit of time.”
In August 2024, the mother and father flew with LL to the jurisdiction of England and Wales. The mother, father and LL travelled on French passports. The purpose of the trip to the United Kingdom was, on the mother and father's account, to visit the paternal family.
The judge said: “The mother concedes in her statement that 'we were going to consider living in the UK if we liked it here' but that she and the father had concluded in short order that the climate and lifestyle was not suited to the family.
“The father corroborates this account in his statement. The mother asserts that, in any event and as evidenced by the return tickets, the family always intended to return to La Réunion following the visit to the paternal family, having spent some 12 weeks in this jurisdiction.”
LL was registered with a GP in this jurisdiction on arrival. Both parents said that this was a precaution taken in respect of a very young infant in the event that she needed access to medical care whilst abroad.
Following the family's arrival in this jurisdiction, the father made an EU Settlement Scheme application on behalf of the mother in October 2024. The judge noted: “That application, which gives the impression of having been advanced only half-heartedly, was rejected by the Home Office on the grounds of missing information.”
The family came to the attention of social services as a result of LL being taken to the Royal London Hospital that month with a presentation that was considered by the examining Consultant Orthopaedic Surgeon and Consultant Paediatrician to be consistent with a “non-accidental mechanism”.
Namely:
i) Swelling to her right arm.
ii) A single acute fracture to her right humerus.
iii) A swollen painful right elbow with a reduced range of movement.
iv) Unexplained petechial markings / bruising to her right upper back / shoulder blade.
The father was arrested and charged with inflicting grievous bodily harm on LL. He was remanded in custody. The mother was arrested on suspicion of having inflicted grievous bodily harm on LL. She was thereafter released under investigation. The criminal proceedings against the father and the investigation of the mother were later discontinued.
The matter came before District Judge Coupland at the end of October 2024, who made an interim care order in respect of LL.
Mr Justice MacDonald said: “The court almost certainly had jurisdiction.... to take urgent measures of protection in respect of a child who is present in this jurisdiction […], on the basis of an urgent need to take protective measures in light of the injuries sustained by LL.
“However, the order of 28 October 2024 records that the jurisdictional basis for the court making an interim care order under s.38 of the 1989 Act was habitual residence. In this context, the court made a declaration that LL was habitually resident in the jurisdiction of England and Wales, notwithstanding that the order also recorded that the mother disputed habitual residence.”
The matter came before the court again in November 2024 before HHJ Suh.
In its skeleton argument for the hearing the local authority indicated that the mother "disputes habitual residence in this jurisdiction".
The skeleton argument also submitted that the English court had jurisdiction in relation to LL on the basis that she was habitually resident in this jurisdiction.
That submission was based on the contention of the local authority that:
- LL had been living in London with her parents for a period of 11 weeks, amounting to one third of her life,
- LL's father had been settled in England for 15 years (although the evidence suggested that more recently he had been residing in La Réunion with the mother and LL),
- the mother's application for a visa suggested "a clear intention to remain here" and
- LL had been registered with a GP.
When the matter returned to court before HHJ Bugg for a third hearing, the question of whether the court had substantive welfare jurisdiction in respect of LL remained outstanding.
Notwithstanding that HHJ Bugg's order did not determine whether the court had substantive welfare jurisdiction, the court went on to make a number of case management directions towards determining the question of LL's welfare.
During the course of proceedings the mother and LL were, pursuant to an interim care order, placed by the local authority in a residential unit and a parenting assessment of the mother was undertaken. That assessment recommended that the mother and LL should return to La Réunion.
In May 2025, the mother issued an application to discharge the interim care order and "transfer the proceedings to the Reunion Island". At a hearing in May 2025, HHJ Bugg re-allocated the proceedings to Mr Justice MacDonald.
At the conclusion of the hearing, MacDonald announced his decision that as at the date proceedings were issued, LL was habitually resident in France and, in consequence, the English court does not have substantive welfare jurisdiction in respect of LL.
His reasoning was set out as follows:
“The parents contend, and the local authority concedes, that the following undisputed facts relevant to the determination of habitual residence were clear on the evidence before the court:
i) The mother and father were born on La Réunion Island and are French nationals. The mother speaks only French.
ii) The mother has a large extended family on La Réunion, including her parents and five siblings, who remain in that jurisdiction.
iii) LL was born on La Réunion.... and is a French national. LL received her medical care on La Réunion and was being monitored by a paediatrician on the island.
iv) Prior to her arrival in the jurisdiction of England and Wales...., LL had never been to this country.
v) At the time of their visit to this jurisdiction, the mother, father and LL lived in close proximity to extended maternal family on La Réunion.
vi) The mother had employment on La Réunion prior to her pregnancy with LL.
vii) [In August 2024], the mother, father and LL travelled to this jurisdiction on a return ticket, with the return flight to La Réunion booked for 28 October 2024, and on French passports. They arrived with a limited amount of luggage.
viii) The mother had not been to this jurisdiction before. The mother has no family of her own, or friends, in the United Kingdom.
ix) LL had not, prior to her visit, met the paternal grandfather and had met the paternal grandmother only once.
x) The purpose of the trip to the United Kingdom was to visit the paternal family.
xi) There was no pre-planning for a permanent move, including pre-arrangements for LL's day-to-day life in England and Wales. The mother and father brought with them no possessions or property (including LL's toys) indicative of an intention to permanently relocate to the United Kingdom.
xii) During their time in this jurisdiction the mother, father and LL stayed with the father's relatives and did not investigate or secure alternative, independent accommodation. The parties retained their rented accommodation in La Réunion. LL did not commence nursery or school in this jurisdiction and did not develop social relationships in that context.
xiii) The mother did not look for a job and remains entirely reliant on the state for meeting all of her financial needs in this jurisdiction. The parents continue to be in receipt of benefits on La Réunion which funds their rent and bills.”
The judge said: “The matters summarised in the previous paragraph plainly tend to connect LL to the jurisdiction of France and point to that practical connection having subsisted as at the date proceedings were issued in this jurisdiction.”
He continued: “I acknowledge that the father had and has a strong connection with this jurisdiction, having moved here when he was 15 years old, having permanent leave to remain within the context of settled status under the EU Settlement Scheme. A further relevant matter is that following the family's arrival in this jurisdiction, the father made an EU Settlement Scheme application on behalf of the mother...... However, that application was rejected.
“More significantly, following that rejection, neither the mother nor the father sought to pursue the application further by seeking to remedy the omissions by reason of which the application was refused. Within the context of that refusal, neither the mother nor, it would appear, LL have immigration clearance to remain in the United Kingdom. Again, in these circumstances, I do not consider these matters significantly undermine the multiple factors connecting LL to the jurisdiction of France.”
He concluded that the court does not have substantive jurisdiction in respect of LL, LL having been habitually resident in France at the time these proceedings were commenced.
Finally, in his closing remarks, the judge highlighted that it is not permissible for the court to seek to “ride two horses” by repeatedly adjourning the question of jurisdiction whilst at the same time seeking to progress the case as if it does have jurisdiction.
He said: “Whilst in this case that course appears to have been adopted in an effort to avoid delay, the result ultimately achieved was precisely the opposite. In the same way that the 'best interests' principle under s.1(1) of the 1989 Act is not a universal solvent for every legal or procedural issue that arises in a given case, nor is the 'delay' principle under s.1(2) of the 1989 Act 1989. Neither principle amounts to a valid reason for putting off the determination of jurisdiction or for making substantive welfare decisions before the question of substantive jurisdiction has been determined.
“The court must not allow the 'protection imperative' to subvert the early determination of jurisdiction by reference to the established legal principles.”
Lottie Winson
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