High Court holds Hague Convention Article 7 can apply where a child is kept in a non-Contracting State

The High Court Family Division held on 28 August 2026 that Article 7 of the 1996 Hague Convention can be applied, if the facts permit, where children are said to be wrongfully retained in a state outside the Convention.

In TK v SD [2026] EWHC 2220 (Fam), Simon Colton KC, sitting as a Deputy High Court Judge, decided a preliminary point of law. The hearing took place on 17 to 19 August 2026 and the judgment was delivered on 28 August 2026. It was given in private and published on condition that the anonymity of the children and their family is strictly preserved.

Background

The mother applied on 20 January 2026 for an order that her five sons be returned from Kenya to live with her in England. She says the family went to Kenya on holiday and that the father wrongfully retained the boys there from late August 2025. The father denies this. He says the trip was a permanent relocation that the family had discussed, agreed and planned, and he argues that the court has no jurisdiction to order the children's return.

The mother relied on a statutory route rather than the court's inherent jurisdiction. Under the Family Law Act 1986, the court cannot make a child arrangements order, prohibited steps order or specific issue order unless it has jurisdiction under the 1996 Hague Convention, or the Convention does not apply and the children were habitually resident in England and Wales on the date of the application.

The question

Article 7 of the 1996 Hague Convention provides that where a child is wrongfully removed or retained, the authorities of the state where the child was habitually resident immediately beforehand keep their jurisdiction in certain circumstances. The question was whether that applies when the country where the child is retained, here Kenya, is not a Contracting State.

The decision

The judge held that Article 7 can be applied, should the facts permit it, even though Kenya is not a Contracting State. He noted that High Court judges had reached conflicting decisions. In some cases Article 7 was held to apply only in respect of Contracting States. In SA v AA [2023] EWHC 2016 (Fam), after lengthy consideration, it was held to apply equally to non-Contracting States.

The reasoning

The judge relied on the approach in Colchester Estates (Cardiff) v Carlton Industries plc [1986] Ch 80, approved in In re Lune Metal Products Ltd [2006] EWCA Civ 1720. Under that approach, where there are two inconsistent decisions from judges of co-ordinate jurisdiction, the second of them should be followed in the absence of cogent reasons to the contrary.

The father argued that SA v AA misunderstood an earlier decision and that its outcome did not depend on the Article 7 point. The judge rejected both arguments. Criticism of the reasoning, he said, is not the same as being convinced that the decision was wrong, and the primary finding on Article 7 remained binding. He treated the question as settled at High Court level.

The judge then set out what remained to be decided: whether the boys were still habitually resident in England in late August 2025, and whether they were wrongfully retained in Kenya then. If the answer to both was yes, the English court would keep jurisdiction unless the father could show that the mother later acquiesced in the retention.

Sources

• TK v SD [2026] EWHC 2220 (Fam), High Court of Justice, Family Division, 28 August 2026: https://caselaw.nationalarchives.gov.uk/ewhc/fam/2026/2220