FD25P00067 - [2025] EWHC 2572 (Fam)

To do so would inevitably have led to a lengthy adjournment of the application for a return order, creating further delay in the life of this young child. This would have been contrary to the intended summary nature of these proceedings, and contrary to O’s welfare.

In Re A and B (supra),the Court of Appeal upheld the decision of Poole J at first instance not to conduct a fact finding inquiry into allegations of domestic abuse by a mother when determining whether to order a return of the children to the UAE, nor to hear oral evidence. Moylan LJ said at para 72:

“As in all welfare decisions, the extent of the court's inquiry and the court's determination of what order to make will depend on the facts of the particular case”. 

A fact finding hearing may be necessary when the court considers the ultimate welfare arrangements for the child, but in this case (and of course every case is fact specific) it was not in my view necessary. This is an application for a summary return order rather than a child arrangements order. Usually, and as with 1980 Hague Convention applications, the purpose of the return order decision is essentially to determine where future welfare child arrangements should be decided, in this case in Thailand or in England. It is for the courts of the seised jurisdiction then to determine whether there is a need for a fact finding hearing/inquiry into domestic abuse, and if so how it should be case managed.

It is open to me to adopt the approach in Hague Convention cases where the Article 13(b) defence is pleaded, by hypothetically taking M’s case at its highest (albeit not making any findings), and assuming the maximum level of risk to the child alleged by her in the event of return. That was how Poole J took account of the allegations in Re A and B, and it seems to me to be a proportionate and pragmatic way to deal with an issue which can be highly contentious, and consuming of a considerable amount of court resources.