FD25P00003 - [2025] EWHC 827 (Fam)

“… any court which is determining any question with respect to the upbringing of a child has had a statutory duty to regard the welfare of the child as its paramount consideration” [18];

“There is no warrant, either in statute or authority, for the principles of The Hague Convention to be extended to countries which are not parties to it” [22];

“…in all non-Convention cases, the courts have consistently held that they must act in accordance with the welfare of the individual child. If they do decide to return the child, that is because it is in his best interests to do so, not because the welfare principle has been superseded by some other consideration.” [25];

“… the court does have power, in accordance with the welfare principle, to order the immediate return of a child to a foreign jurisdiction without conducting a full investigation of the merits. In a series of cases during the 1960s, these came to be known as 'kidnapping' cases.” [26];

“Summary return should not be the automatic reaction to any and every unauthorised taking or keeping a child from his home country. On the other hand, summary return may very well be in the best interests of the individual child” [28];

“… focus has to be on the individual child in the particular circumstances of the case” [29];

“… the judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that proposition will vary enormously from case to case. What may be best for him in the long run may be different from what will be best for him in the short run. It should not be assumed, in this or any other case, that allowing a child to remain here while his future is decided here inevitably means that he will remain here for ever” [32];

“One important variable … is the degree of connection of the child with each country. This is not to apply what has become the technical concept of habitual residence, but to ask in a common sense way with which country the child has the closer connection. What is his 'home' country? Factors such as his nationality, where he has lived for most of his life, his first language, his race or ethnicity, his religion, his culture, and his education so far will all come into this” [33];

“Another closely related factor will be the length of time he has spent in each country. Uprooting a child from one environment and bringing him to a completely unfamiliar one, especially if this has been done clandestinely, may well not be in his best interests” [34];

“In a case where the choice lies between deciding the question here or deciding it in a foreign country, differences between the legal systems cannot be irrelevant. But their relevance will depend upon the facts of the individual case. If there is a genuine issue between the parents as to whether it is in the best interests of the child to live in this country or elsewhere, it must be relevant whether that issue is capable of being tried in the courts of the country to which he is to be returned” [39];

“The effect of the decision upon the child's primary carer must also be relevant, although again not decisive.” [40]

“These considerations should not stand in the way of a swift and unsentimental decision to return the child to his home country, even if that home country is very different from our own. But they may result in a decision that immediate return would not be appropriate, because the child's interests will be better served by allowing the dispute to be fought and decided here.” [41]

The court needs to consider whether the evidence before it is sufficiently up to date to enable it then to make the summary order ([56]);

The court ought to consider the evidence and decide what if any findings it should make in order for the court to justify the summary order (esp. in relation to the child's habitual residence) ([57]);

In order sufficiently to identify what the child's welfare required for the purposes of a summary order, an inquiry should be conducted into any or all of the aspects of welfare specified in section 1(3) of the 1989 Act; a decision has to be taken on the individual facts as to how extensive that inquiry should be ([58]);

In a case where domestic abuse is alleged, the court should consider whether in the light of Practice Direction 12J, an inquiry should be conducted into the disputed allegations made by one party of domestic abuse and, if so, how extensive that inquiry should be ([59]);

The court should consider whether it would be right to determine the summary return on the basis of welfare without at least rudimentary evidence about basic living arrangements for the child and carer ([60]);

The court should consider whether it would benefit from oral evidence ([61]) and if so to what extent;

The court should consider whether to obtain a Cafcass report ([62]): “and, if so, upon what aspects and to what extent”;

The court should consider whether it needs to make a comparison of the respective judicial systems in the competing countries – having regard to the speed with which the courts will be able to resolve matters, and whether there is an effective relocation jurisdiction in the other court ([63]).

Where allegations of domestic abuse are made, the court is not obliged to conduct a fact-finding hearing in every case, but should decide on the facts of the particular case “in respect of all relevant matters, but in particular in respect of the matters set out in s 1(3) of the CA 1989 and any allegations of domestic abuse, whether, in order sufficiently to identify what the child's welfare requires, the court should conduct an inquiry into any or all of those matters and, if so, how extensive that inquiry should be.” [71]

In making that decision, para 16 of PD12J applies, which requires the court to ask the question ‘whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic abuse’ including to provide a basis for an accurate assessment of risk or before considering any final welfare-based order in relation to child arrangements.

The first stage is to consider the nature of the allegations and the extent to which it is likely to be relevant in deciding whether to make a child arrangements order and if so in what terms (PD 12J, para 5).

In deciding whether to have a finding of fact hearing the court should have in mind its purpose (PD 12J, para 16) which is, in broad terms, to provide a basis of assessment of risk and therefore the impact of the alleged abuse on the child or children.

Careful consideration must be given to PD 12J, para 17 as to whether it is “necessary” to have a finding of fact hearing, including whether there is other evidence which provides a sufficient factual basis to proceed and importantly, the relevance to the issue before the court if the allegations are proved.

Under PD 12J, para 17(h) the court has to consider whether a separate fact-finding hearing is “necessary and proportionate”. The court and the parties should have in mind as part of its analysis both the overriding objective and the President's Guidance as set out in The Road Ahead.'