GU24P07400 - [2025] EWHC 1587 (Fam)

Fecha: 25-Jun-2025

The Law

The Law

31.

The law is this area is well established. The children’s welfare is my paramount consideration. This is clearly set out by Lady Hale giving the decision in Re J (A Child) (Child Returned Abroad: Convention Rights) [2005] UKHL 40; [2006] 1 AC 80. She held as follows:

“… 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];

ii.

“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];

iii.

“…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to return the child, that is because it is in his best interests to do so, not because the welfare principle has been superseded by some other consideration.”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];

iv.

“… 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];

vi.

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

vii.

“… 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];

viii.

“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];

ix.

“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];

“A child may be deeply unhappy about being recruited to one side in a parental battle. But if he is already familiar with this country, has been here for some time without objection, it may be less disruptive for him to remain a little while longer while his medium and longer term future is decide than it would be to return.” [34]

xi.

“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];

xii.

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

32.

Lord Wilson further considered the correct approach of the trial judge in a non-Hague case in Re NY (A Child) [2019] UKSC 49; [2020] AC 665. He set out questions that the first instance judge should “at least give some consideration to” at paragraphs 56 – 63. Cobb J helpfully summarised these at paragraph 38 of J v J (Return to Non-Hague Convention Country) [2021] EWHC 2412 (Fam) as follows:

“i)
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]);
ii)
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]);
iii)
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]);
iv)
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]);
v)
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]);
vi)
The court should consider whether it would benefit from oral evidence ([61]) and if so to what extent;
vii)
The court should consider whether to obtain a Cafcass report ([62]): "and, if so, upon what aspects and to what extent";
viii)
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]).”

33.

It is also necessary to consider Re A and B (Children) (Summary Return: Non-Convention State) [2022] EWCA Civ 1664. The Court of Appeal endorsed the approach taken by Poole J at first instance, in a case about assessing future risk of harm in an application involving a non-Hague country. Moylan LJ (with the agreement of Peter Jackson and Warby LJJ) set out the following:

“81.
I first deal with the submission that the judge's decision was flawed because, as part of his analysis, when considering "the risks to the children in the context of a return to E", he adopted the Re E approach to the assessment of those risks. In my view, the judge was entitled to use this approach. He was, as Peter Jackson LJ observed during the hearing, doing no more than evaluating the evidence to consider the maximum level of risk. He could have done this as part of his analysis without referring to Re E and no objection could have been taken.”

34.

Moylan LJ concluded:

"In summary, the court's decision is a welfare determination and must give paramount consideration to the welfare of each child as required by section 1(1) of the CA 1989. The court has to decide the extent to which it needs to investigate the facts of the case, including by holding a fact-finding hearing, in order properly to determine what order is in a child's best interests. The court needs to consider all relevant factors, including PD 12J, when determining whether a summary determination is sufficient and what order to make."

35.

As set out above, Cobb J affirmed this approach recently in Re O. Furthermore, it is not necessary to get overly involved in questions of habitual residence.

36.

I have also reminded myself of Practice Direction 12J of the Family Procedure Rules in respect of domestic abuse.