FD25P00003 - [2025] EWHC 827 (Fam)

Before turning to the welfare analysis, I confirm that I have considered the factors identified in Re NYand I am satisfied that I have sufficiently up to date and comprehensive evidence to make a decision on a summary basis whether H should return to the Philippines. Although I do not have a report from Cafcass, that would not assist me in respect of H’s own wishes and feelings as she is not able to express them in an informed manner due to her age. No party suggested that I should adjourn the hearing to obtain such a report, or a report from another source such as an independent social worker.

I have compared the respective judicial systems in England and the Philippines. While it would certainly be easier for KS to pursue his case in favour of H’s permanent residence in England in the courts here, I do not consider that he is precluded from making his arguments in the Philippines or that it will be so difficult for him that it can be said that there is no effective relocation jurisdiction: the issue of custody and therefore relocation is capable of being tried in the Philippines.

The starting point that it is likely to be better for a child to return to her home country for disputes about her future to be decided is a factor in favour of the argument that H should go back to the Philippines. Both Mr Basi and Ms Dunseath have suggested that whatever decision I make will inevitably determine the issue on a final basis, as it will be difficult for both parents to pursue their cases in the country they do not live in. I have proceeded on the basis that such an outcome is not inevitable, as this is a summary determination not a final decision on the basis of a full welfare evaluation. I do not have evidence to suggest that the timescale for a final decision would be markedly different in either country – it is likely to take at least three months and probably longer in both jurisdictions. KS’s proposal if the return order is not made is that a Cafcass report or an independent social work report is obtained, and further evidence filed before a decision is made in the local courts to KS.

Another factor in favour of return is that H was born in the Philippines and before her holiday to England in December, had spent her whole life there. There was no plan for the family to live in England. Although H was only 14 months old when she arrived in England, and has now been here for approaching four months, her connection to the Philippines is stronger than her connection to England. FB says, and I accept, that she was still breast-feeding H. While H was obviously eating solid food too given her age, it is a significant factor that H was separated from her mother while still breastfeeding. KS disputed the frequency of breastfeeding but I have seen messages from FB to KS about needing to express breastmilk in December 2024, and I note that KS’s own evidence was that H falls asleep at night ‘on the bottle’ now that he is caring for her. Both parents contend that they were her primary carers and I am prepared to accept that description, since both worked from home and shared the care of H, but as a very young child, H still received this particular form of care which only her mother could provide. Being separated from H has undoubtedly had a negative effect on FB, whose distress and desperation to see her child were clear during her oral evidence.

Ms Dunseath says that KS could not return to the Philippines as he would not have the protection of any civil remedies in respect of domestic abuse, but his evidence is that if H is returned, he will go back to the Philippines to see her three or four times a year, with undertakings being given by FB not to use or threaten violence towards him, and not to institute or support any criminal proceedings against him.

H is fortunate to have a wider family network in both England and the Philippines, including grandparents and aunts or uncles in both places. Her half-sibling G remains in the Philippines, and although it was said by KS that his interactions with H on videocalls are less enthusiastic than can be seen during calls with H’s grandparents, that is nevertheless an important family relationship for H which has also been disrupted.

Both parents are able to travel to the other country and can afford to pay for air fares and accommodation in order to participate in future court proceedings in either place, although KS is probably more flexible in his ability to travel, as he works for his family’s business and can work remotely from the Philippines, whereas FB’s ability to work remotely in England has not been demonstrated.

Looking at the welfare checklist in s.1(3) CA 1989, in my view, the majority of the considerations fall in favour of a return order, in light of my rejection of KS’s primary argument that FB poses a sufficiently high risk of emotional harm to H as a result of her inability to control her temper that it would not be safe for H to return to her care.

As an 18-month old child, H would no doubt wish to have a relationship with both her parents provided that was safe and did not expose her to harm, and this would include the continued care and affection of her mother, which it will be more difficult for her to have if she remains in England pending a final decision about her welfare. She would also want to spend time with her wider family in the Philippines who she has been close to since birth, living for most of her life with her grandparents and her half-sibling. She would acclimatise to a return to that familiar environment easily. Her immediate needs could be met in England by KS, and in the Philippines by FB, both also relying on family members for assistance with childcare. I do not accept KS’s contention that H is doing better in England than she was in the Philippines. She has just gone through a four-month period when any child would be expected to exhibit signs of developmental progress, and I do not have any evidence to suggest that KS had concerns about H’s development or the family’s living conditions in the Philippines prior to December 2024.

The two key elements of KS’s case against return are that FB poses a real risk of emotional harm to H even though she is no longer in a relationship with KS, and that he is not properly able to pursue his case in the Philippines or to enforce orders made by this court. On the first of those, I have found that the risk of emotional harm is primarily linked to the dysfunctional relationship between KS and FB, with insufficient evidence to show a real risk of that harm continuing outside the relationship that outweighs the other welfare considerations for H. I have been careful to guard against the assumption that because KS is a male victim of domestic abuse, its effects are somehow less serious or significant. I have found that he was repeatedly subjected to serious assaults by FB during their relationship, but I have not felt able to extrapolate from that, on the evidence before me, to a material ongoing risk of emotional harm to H from seeing her mother behaving angrily or aggressively in other contexts. On the second, I have found that the relocation jurisdiction in the Philippines is adequate, even though it is not identical to the approach in England, and even though the steps required to enforce orders or judgments are not as straightforward as they may be in other countries. The difference in approach between the two jurisdictions does weigh against making a return order but I do not consider it to be a determinative consideration.

Drawing all the above together, while there are factors in favour of H remaining in England while a long-term decision about her future is made, overall I am satisfied that at this stage, the balance falls in favour of making a return order, together with orders against FB (made with her consent) requiring her to facilitate ongoing video contact with KS and his family, to keep KS informed of H’s whereabouts, not to use or threaten violence to KS either in person or in correspondence, not to instigate or support criminal proceedings against KS in the Philippines, and to facilitate in-person contact between KS and H, including permitting trips abroad unless that is temporarily prohibited as a result of court proceedings being in progress. FB’s application therefore succeeds.