GU24P07400 - [2025] EWHC 1587 (Fam)

Given the Applicant issued an application for a child arrangements order and a specific issue order and the Respondent had issued applications for a Children Act 1989 order and an inherent jurisdiction return order, I carefully clarified the issues at the outset. Both counsel were unambiguously clear that this court had jurisdiction and that the sole issue was whether to make a return order or not, pursuant to the court’s inherent jurisdiction. It was accepted I need not determine the children’s habitual residence at the date of the various applications or at the date of the hearing.

At the conclusion of the hearing I ordered there should be supervised video call contact between the Respondent and the children and that two days later there should be a two hour lunch meeting between the Respondent and the children, supported by an independent social worker. I have seen a note of this. It went well. The children ran to their father and hugged him. They had a happy lunch and no issues arose from the ISW’s report.

The Respondent’s succinct submission is that the children have the closest connection with Nigeria, where they have been brought up. Orders were made before the Nigerian courts setting out their custody arrangements between the parties. The Applicant should not be permitted to benefit from the improper removal of the children from their home. The Applicant submits the children are now settled and happy and their welfare dictates they should remain here. The Applicant is fearful of returning and does not consider there are adequate protective measures. I have read the opening and closing notes of each counsel carefully.

The parties agreed that fact finding of the allegations of domestic abuse need not be determined prior to the determination of the summary return. I agree. I adopt the approach set out by Moylan LJ in A and B. I will take the mother’s allegations at their highest and consider whether this places the three children at risk of harm if returned to Nigeria.

Adopting this approach and conducting some assessment of the allegations of domestic abuse and coercive controlling behaviour, but without conducting fact finding, the following points are material to the future risk of harm to the children in Nigeria. First, the Nigerian courts have been seized with these proceedings and they apply a very similar child welfare and domestic abuse legislative scheme. Aside from the initial, possibly overly enthusiastic ex parte order (how often ex parte orders are not the way to begin litigation) the Nigerian courts have made, if I may say so, entirely appropriate orders. The courts determined the children should live with their mother and spend time with their father. The court required the Applicant to disclose the children’s address. An order was made the children should not leave the jurisdiction.

Furthermore, I note the Applicant appeared content with this and invited the Respondent into her new home to see the children. She wished to supervise this, contrary to the terms of the order. Her efforts in the witness box to place a spin on various Nigerian court orders were not impressive. She has chosen to disobey those orders. Furthermore, I note from the agreed evidence, the Respondent and his parents were aware for many months in 2024 where the children were being educated. However, there are no allegations they tried to remove the children from school or interfere in the Applicant’s life when collecting or dropping off the children. Furthermore, it is part of the Applicant’s case that the Respondent demonstrated insufficient interest in the children in 2024 and missed birthdays etc. When assessing all this, in the knowledge that orders can be made and be largely enforced by the Nigerian courts and authorities, I do not assess the children to be at risk of harm if returned. I do not assess the Applicant to be at risk of harm which would impact on the children. The agreed facts and the protective schemes offered through Nigerian court orders will manage those risks. The allegations of coercive and controlling behaviour are at the lower end of the scale. The relationship between the parties is over. The conflict that has arisen is over the custody of the children. The Respondent sought to regulate this by way of court orders. The Applicant has adopted an unreal interpretation of those orders to make unilateral decisions for the children. Therefore, taking allegations at their highest there is only very limited risk of emotional harm to the children. This can be ameliorated by protective measures. Ideally this would be by way of an order from the Nigerian courts. I will return this below.

Having considered the Cafcass evidence and the ISW report of the contact, it is clear that the children need both parents in their lives. This is what the Nigerian courts ordered. If the children remain in England, they will see very little of their father. The Applicant told Ms Huntingdon she would not return to Nigeria. However, she has not said that in her written or oral evidence to the court. I do not assess her as likely to abandon her children, should a return order be made. My assessment of her written and oral evidence is that she is an intelligent, resourceful and very capable woman. She took the decision to end the relation in 2023 and she navigated the post-relationship issues and brought up the children as she has wanted. The nature of custody and contact in Nigeria are issues that can be litigated there, subject to Nigeria’s legislative scheme which places the best interests of the children at the heart of decision making. If the Applicant wishes to relocate to another country, there is no expert evidence before this court, that the Nigerian court cannot grant a relocation order. It is best a Nigerian judge in a Nigerian court considers that issue. There may have been adjournments of the Nigerian proceedings but that also happens in this jurisdiction, too.

The Applicant, in opposition to the Nigerian order, insisted she would supervise contact in 2024. As a result, the children were denied time with their father. This has caused them emotional harm. The abrupt departure from Nigeria to England was, in my judgement, emotionally harmful to the children. They were harmed when taken from their country, their home, their wider families and friends, their culture, their school and their background, by being brought to the UK. They were housed in hotels and then moved to a new home. They had to fit into an alien country. They had to start again in new schools. All this is harmful to them. Their father did not know where they were until November 2024.

Notwithstanding the facts that the eldest child was born in the United Kingdom and all three children are British citizens, it is clear the country with which these children have the closest connection is Nigeria. They were brought up there and lived there all their lives until they were removed by the Applicant in July. The fact they have lived in the United Kingdom for nearly a year by the time of this judgment does not alter this fact. The children were brought up by the parents and have wider Nigerian family. They went to school in Nigeria. Culturally, Nigeria is home. These are Nigerian children and were the subject of proceedings before the Nigerian courts.

I fully accept they have enjoyed a year of life in England and Wales and have done well at school. I accept they have had their medical and dental needs met. They have gone to church and they have friends. However, they were doing well in Nigeria. They had a wide extended family. They had been at the same schools. X had been at the school for his nursery and was in the third year of his primary. His sisters followed him at this school. Whilst it is disruptive for them to be returned, they are young and resilient and the end of the summer term is a good time for them to return. Whilst I do not apply the principles of the 1980 Hague Child Abduction Convention, I consider it appropriate to take into account the fact their abrupt removal from Nigeria was contrary to the orders of those courts and that permitting the Applicant to benefit from their relatively settled position here is not principled.

I place limited weight on the wishes and feelings of the children as reported by Cafcass. They have little understanding of the issues with the summary return. However, I do place weight on the fact they have positive views of Nigeria and the Respondent. I place weight on the fact the only negative with a return to Nigeria was X’s preference to be able to swim at school in England. They are young, but it would be wrong to discount entirely their ascertainable wishes and feelings.

Their educational and health needs can be met either in England or Nigeria. After some unfortunate equivocation, the father has made clear the resources are in place for them to return to their former school. Health insurance is arranged in Nigeria.

Ultimately, these are Nigerian children who grew up in that country with their parents and their broader family. That is their background and their identity. Contrary to court orders, the Applicant removed them abruptly from this life. Despite the fact, they have now been here for nearly a year, in my judgement, having regard to their welfare as my paramount consideration, a summary return to permit the Nigerian courts to determine matters is in their best interests.

I will make a conditional return order. I have formed the view that the allegations made result in the risk of only limited emotional harm. Possibly more harmful to the children is the non-compliance with the orders from the Nigerian court. Nonetheless, there is some time to ensure an adequate protective framework to manage the limited risks. I take the view the appropriate time to return the children to Nigeria is over the summer holiday after they have completed their summer term at school. That provides a window of opportunity for undertakings and/or orders to be made before the Nigerian courts, which remain seized of litigation between these parties.

The parties, led by the Respondent, are to seek an order before the Nigerian courts, which is enforceable, providing maintenance which will cover the children’s educational, health and other expenses. He should also give an undertaking or agree to be bound by an order not to intimidate, harass or pester the Applicant, albeit he denies ever having done so. He should also avoid being present at the airport when the Applicant and children return. With these measures in place, a return to Nigeria, to their home, for the children can take place after the end of their current school term in late July 2025. Should there be a lack of clarity or a dispute about the terms of any order in the extant Nigerian proceedings, I shall list this matter for a review hearing before the end of this term, reserved to be heard by me. I will consider at that review hearing if necessary whether undertakings alone in this jurisdiction would be sufficient, should there be difficulties before the Nigerian courts, which I consider unlikely.

I ask counsel to draft an order to give effect to this decision.