I’m sure that by now most of you have heard about Game of Thrones actress, Sophie Turner’s split from her popstar husband, Joe Jonas. It started with news that Joe had applied for a divorce, then it followed that he was apparently criticising Sophie’s parenting skills and now the news has broken that she is ‘suing’ him to have her children returned to the UK.

It’s proven to be one of the biggest celebrity gossip stories of the summer – but what’s really going on?

What’s happening?

Joe’s representative has told the media that the children (Willa, aged 3 and a 1-year-old whose name hasn’t been made public) were born in the US, that they have spent the vast majority of their lives in the US and that they are American citizens, but according to Sophie, the children are habitually resident in the UK. “Habitual residence” is a legal term which refers to the place where a person lives regularly and considers to be their home. It is a term that can be used to determine the law and/or jurisdiction that applies to a legal dispute.

Sophie and Joe had agreed that the children would travel to the US with their father who would be touring there. Sophie’s application states this was a temporary arrangement and that there was an agreed plan for their return to England. However, whilst Sophie is now apparently in New York with the children, Joe is allegedly refusing to provide her with their passports, thus preventing them from returning home.

What does the law say?

A big issue here is jurisdiction. The most likely way Sophie will achieve success will be for a judge to rule on the 1980 Hague Convention. The purposes of the Convention are to protect children from the harmful effects of international abduction by a parent by encouraging the prompt return of abducted children to their country of habitual residence. The idea is then that long-term arrangements for the children should generally be decided by the court in the country of the child’s habitual residence.

The application must be brought within one year of the wrongful removal or retention of the child and it must be brought in the country where the children are located.

Will Sophie be successful?

The Hague Convention is a blunt instrument and children are usually returned to the country where they are habitually resident automatically if an allegation of wrongful retention is proven. However, for the Convention to apply here it needs to be established that the children are indeed habitually resident in England and that they have been wrongfully removed or retained in the US.

As such, there may be some defences available to Joe, namely:

• He could submit that the children have been in the US for over a year and are settled there. For this to be determined, the court will need to examine where the children go to school, where their friends live, which doctor they are registered with and other factors which could indicate whether a home should objectively be considered temporary or permanent.
• He could try to show that Sophie agreed to the children living in the US but then subsequently changed her mind following the separation.

What’s next?

If Sophie’s application is successful, the children will return to the UK and the Family Court of England and Wales will have to consider the Welfare Checklist and determine arrangements for the children to spend time with and maintain relationships with both Sophie and Joe. If her application fails, they will likely remain in the US and a US court will have to make a similar decision.

The unfortunate truth is that for international families these proceedings are all too common. It is important that parents who find themselves in similar positions take legal advice at the earliest opportunity so that action can be taken to protect the children involved and to keep them safe and happy.