FD25P00001 - [2025] EWHC 892 (Fam)

The applicant father seeks the summary return of his son to the United Arab Emirates (hereafter the “UAE”). The respondent mother opposes the application. The dispute is about S, a little boy, who was born in June 2023 and is 1 year 10 months old.

The application was issued on 31 December 2024. At a hearing on 16 January 2025, Sir Jonathan Cohen listed the matter for a pre-trial review and a three day final hearing. He directed a local authority in the North of England file and serve a letter setting out its involvement with this family. He directed the parties file and serve witness statements and schedules of allegations. Sir Jonathan concluded it was neither proportionate nor necessary to direct a report from CAFCASS.

At a hearing on 11 February 2025 Mr David Rees KC agreed the instruction of a Part 25 expert, Mr Andrew Allen KC, on the law of the UAE. Mr Rees KC directed:

“The parties shall forthwith jointly instruct Andrew Allen KC to provide a Part 25 expert report in accordance to address the questions approved by the court at this hearing. The mother’s solicitors shall take the lead in the instruction and must ensure that the father is copied into all correspondence with the expert. The costs shall be shared equally by the parties. The report must be filed by 4pm on 31 March 2025, this being the date the expert has said they can report by. The costs are certified as a necessary and proportionate cost on the mother’s legal aid certificate provided that they are capped at no more than £4,000 exc VAT. The expert must ensure that they are available to attend the final hearing on 8 April 2025 if required to do so by either party. Such attendance may be remote. The parties must notify the court and the expert not later than 4pm on 4 April 2025 if the expert is required to attend and if so if they wish to attend by remote means.”

A pre-trial review took place before Cusworth J on 4 March 2025. He determined a fact finding hearing was not required to determine the summary return application. He also directed that the issue of oral evidence should be determined as a preliminary issue by the trial judge at the outset of the three day hearing.

At the outset of the hearing before me, the parties agreed it was not necessary for them to give oral evidence. The mother sought to cross-examine Mr Allen KC. Mr Bennett opposed the application on behalf of the father. I refused that application. I therefore heard submissions only. Mr Rustin identified issues he wanted to ask Mr Allen KC. However, he did not explain why these issues were not set out in the letter of instruction. Nor why questions had not been put about these issues when the report had been received. Nor could he explain why Mr Rees KC’s directions as to the calling of oral evidence of Mr Allen KC had not been complied with. I do not accept this was because there was insufficient time. The failure to follow the directions on this issue is a good enough reason to refuse the request for cross-examination. However, more fundamentally if the identified issues were not ones formulated in the letter of instruction or in questions upon receipt of the report, then I cannot be persuaded it is necessary to permit cross-examination of these issues at the hearing. The fact the court had time to accommodate such questioning is no answer to the need to follow the rules and directions made.

I have determined to refuse the summary return order and I endeavour to set out my reasons for arriving at that decision below.