FD25P00001 - [2025] EWHC 892 (Fam)

S’s welfare is the court’s paramount consideration. The parties agree he was habitually resident in the UAE on 2 December 2024, when his mother brought him to Manchester. From birth until 2 December 2024, S spent 237 days in the UK compared with 304 days in the UAE. From birth until 9 April 2024 he has spent 365 days in the UK compared to 304 days in the UAE. S is a British citizen. S was born in the United Kingdom. Both his parents are British citizens who were brought up in the United Kingdom (albeit his father was born and lived briefly in Pakistan). In as much as it is necessary to determine in a common sense way, as Lady Hale suggests, what is S’s home country - the choice is between the UK and the UAE. As of April 2025 more factors point to the UK being his ‘home’ country over the UAE, notwithstanding his habitual residence there on 2 December 2024.

There is no dispute I have jurisdiction to order the summary return of S to the UAE to permit the courts in that jurisdiction to determine the medium and long term future of S. Whether S is returned on a summary basis or whether there needs to be a fuller assessment of whether he should be returned is a decision rooted in an assessment of where S’s best interests lie today. I must focus on S as an individual and the individual circumstances that pertain to him having regard to all relevant welfare factors. There is no basis for my assessment to import any of the policy objectives of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, hereafter the "1980 Hague Convention" in circumstances where the UAE is not a signatory to that treaty. I have heard no submissions on the issue, but it may well be the case the return order application would have been determined differently if the UAE were a signatory to the 1980 Hague Convention. Modern parents are aware of these issues when they choose to live and work in overseas countries.

Mr Bennett submits S was habitually resident and settled in Dubai. His life was there. He was unlawfully retained and the removal was carried out with deception. He submits I should accept such an unplanned move is harmful. He submits S has a greater degree of connection with Dubai than the UK. He relies on Mr Allen’s expert evidence that Dubai operates a fully functioning and well-resourced court system which both parties can access. That jurisdiction operates a best interests approach within the cultural context of the UAE. I am reminded the UAE is a signatory to the UN Convention On the Rights of the Child. The court can make relocation decisions for children. He submits that in the context of the father’s protective measures, the mother can return with S in a safe manner. He reminds me there is no medical evidence that the mother’s physical or mental health would be impaired by a return to Dubai. She is a qualified teacher and can obtain employment. The father will pay for six months accommodation and this can be paid up front and made a condition of the return order. He submits that whilst the father denies the allegations of abuse made against him, once evaluated (and he invites me to evaluate the allegations and find some of them unlikely) the court should consider the maximum amount of risk. He submits that when the risks to S are then identified, the father’s protective measures mean the mother “will be insulated from any alleged risks of coercive control or other behaviours.” This will prevent the mother and father coming into contact. He submits her immigration status will be secure. He particularly submits the three allegations of child abuse perpetrated by the father against S cannot be taken at their highest because of the contemporaneous documentation which demonstrates the mother’s inconsistencies. The last paragraph of his skeleton argument sets out his submissions based on the welfare checklist.

Mr Rustin’s submissions focus on the relative situations S would find himself in if he remains in this jurisdiction for a fuller welfare evaluation if the summary return is refused, in comparison with acceding to the application and the situation where S is shortly returned to Dubai. He submits the mother’s situation would be unstable from the perspective of her employment, immigration, housing and financial situations. He submits the mother would be very isolated with no friends or family in Dubai. She would have no assistance with caring for S. This would add to her stress and anxiety which would impact on S. All of this taken together, it is said, would substantially negatively impact on S’s welfare. He contrasts this with the mother’s stable housing situation and stable financial position with Universal Credit in England. Next it is submitted S has very considerable familiarity with life in the UK. In this context, I asked when S began speaking. Mr Rustin stated S had a few words at fifteen months and began speaking in sentences at 19-20 months. Mr Rustin submits S would be returning to a very unfamiliar environment in Dubai. He submits the father’s proposal is that the mother and S should return and be housed in temporary accommodation until such time as a new rental home is obtained. That would involve three different homes in as many months. S would not be returning to the former family home. Further, Mr Rustin submits that contact can be better advanced with the supportive framework of supervising family and friends who are in England and with a supervised contact centre in England. He states this would be more meaningful given the context of the mother’s lack of support in Dubai, having regard to the bail conditions. This would be beneficial to S’s welfare. Mr Rustin submitted that the mother’s access to the Dubai courts will be difficult and that the reference to the ‘cultural context’ of the UAE courts’ legal assessment of best interests would likely import the mother’s obedience to the child’s guardian – the father. He also submits that she has no funds to fund the relocation litigation, does not speak Arabic and has no funds to cover the costs of the interpretation and translation of documents. He submits the protective measures are of limited real value, there can be no mirror order and the UAE courts will not recognise an order from this court. This he submits leaves the mother, who it is said to be a victim of prolonged domestic abuse, vulnerable in the hands of the father and completely dependent upon him, whilst very isolated in the UAE, all of which will seriously negatively impact on S, to the detriment of his wellbeing.

I have determined the summary return of S to the UAE is inconsistent with his best interests for the following combined reasons:

First, it is overwhelmingly in S’s best interests for the allegations of serious domestic abuse to be determined promptly to allow for welfare based decisions to be made for him. In my judgment, on the particular facts of this case, this can more speedily happen in the courts of England and Wales, because:

Secondly, without resolving the disputed allegations of domestic abuse, but assessing the risk of harm at its highest, I am not satisfied the father’s protective measures will ensure S’s wellbeing is not negatively impacted. I am particularly concerned that there is little effective means to shield S from the fallout of his mother’s anxiety, isolation and fear if returned to Dubai. I do not need medical evidence to make that determination. I have the following issues in mind:

Thirdly, a return order would result in S facing very considerable disruption. There could be distinct negatives for S’s wellbeing brought about by the change of circumstances occasioned by the summary return order. I have in mind:

Fourthly, as I have stated above, on balance, the UK is S’s home country. In my judgement, it therefore follows that there are plain welfare benefits to S of the English courts resolving his welfare needs. Whilst ordinarily, much greater weight would be given to the stability of a return to the country of habitual residence, with this very young child and the almost equal amount of time he has spent in both jurisdictions, his habitual residence on 2 December 2024 is a factor to which I afford weight, but less weight than in other circumstances. Furthermore, the last four and half months of S’s short life will have involved him at his most interactive, curious and communicative. That has taken place in England. I consider his retention in December was wrongful and unlawful and I approach post 2 December 2024 factors with caution. I accept unlawful retention of children must not be encouraged by the courts. All of that being said, I must carry out a welfare assessment of S and his individual circumstances now. If this seems unfair on the father, then it is important to state that S’s best interests come first and the paramountcy of his welfare takes precedence.

Fifthly, I have not overlooked and nor do I disagree with Mr Allen’s assessment of the well-resourced Dubai court carrying out welfare assessments based on the best interests of the child in the cultural context of the UAE. I find, however, that there are very real practical challenges for the mother accessing legal representation. This barrier must be taken together with the difficulty of funding translation and interpretation. Without these, her ability to fully access justice is more likely than not to be compromised. It is not consistent with resolving S’s welfare that one party is prejudiced and cannot fully participate. The father’s protective measure of offering 1000 AED cannot overcome this. The alternative of the mother requiring to find employment creates significant delays but also comes with disadvantages to S’s daily welfare needs, as I have set out above;

Sixthly, on both parties’ written evidence this was an abusive relationship. Whether both are telling the truth or neither, is a matter that will soon be resolved. However, taking their respective written evidence on face value, S is likely to have been harmed by the domestic abuse conducted, at times, in his presence. Refusing the summary return pauses that harm for now.

Lastly, by refusing a summary return I do not consider any part of the welfare checklist has not been taken into account, although I have not mentioned every factor. In particular, at this stage I find that it is more likely video contact and in person supervised contact between S and his father can take place in England. This is in circumstances where the mother has a support system of family and friends in place here in England. The father can visit England and the mother now, albeit belatedly, offers supervised contact at a contact centre. This provides a mechanism for S continuing his relationship with his father, consistent with the bail conditions, until such time as the domestic abuse allegations can be determined.