High Court declines jurisdiction in cross-border child protection dispute over habitual residence

The High Court of Justice in England and Wales has delivered a significant ruling on habitual residence in cross-border child protection proceedings, declining to exercise jurisdiction over a child removed from her parents' care by Spanish authorities.

In the case before Mr Justice Poole on 7 July 2025, MB, a British citizen, sought the immediate return of her five-month-old daughter CB from Spain to England. The urgent application arose after Andalusian child protection authorities intervened when CB was five weeks old, removing her from her parents' care following MB's application for a British passport.

Factual background and key issues

CB was born in Spain in October 2024 to MB, who had relocated there during pregnancy. The court established that MB had misrepresented her circumstances, claiming to be on holiday when she had deliberately planned the birth in Spain to avoid intervention from British authorities. Evidence revealed a troubling pattern whereby MB's previous children had been removed from her care.

The proceedings centred on determining CB's habitual residence, a primarily factual matter rather than merely a legal concept. The court noted that a child's habitual residence typically aligns with their primary caregiver's residence and the degree of integration within a particular social and familial environment.

Jurisdictional analysis under the 1996 Hague Convention

Justice Poole examined the potential for jurisdictional transfer under the 1996 Hague Convention, which permits a child's habitually resident member state to request another member state to take protective measures. However, the court determined that CB was habitually resident in Spain, having lived there throughout her entire life without ever entering England.

The judgement emphasised the critical importance of full disclosure in family proceedings. Justice Poole observed that the lack of transparent information from MB had severely compromised the proceedings, resulting in protracted hearings that exhausted judicial resources. The court required unvarnished accounts to enable swift, informed decision-making.

Judicial reasoning and welfare considerations

The court concluded that asserting jurisdiction over a child in temporary foster care under Spanish authority would be inappropriate. Justice Poole recognised that Spanish authorities were better positioned to assess and protect CB's best interests, particularly given their understanding of the ongoing welfare proceedings and the familial context in which the parents had operated.

The judge declined to invoke the High Court's inherent jurisdiction in what he characterised as an unprecedented scenario involving protection against European child protection agencies. This decision reflects the complex interplay between national sovereignty and child welfare in cross-border disputes.

Implications for cross-border family law

The ruling highlights the intricate nature of international family law where child welfare and jurisdictional disputes intersect. It reinforces the principle that courts must carefully consider which jurisdiction is best placed to protect a child's interests, rather than automatically asserting jurisdiction based on parental nationality.

The case demonstrates the necessity of robust cooperation between international child welfare systems whilst maintaining that the child's best interests remain paramount. CB's ongoing care and welfare remain within Spanish jurisdiction, with all parties acknowledging she would likely remain in Spanish care for the foreseeable future.

This decision serves as an important precedent regarding habitual residence determinations and jurisdictional considerations in cross-border child protection cases, particularly where parents may have deliberately relocated to avoid domestic authority intervention.