H (Children), Re

In international child-abduction cases involving a non-Convention country, the children’s welfare remains the dominant and paramount consideration. The court must assess the effect of a proposed return in light of the children’s wishes and feelings, relationships, circumstances and the passage of time. On appeal, permission should be refused unless the judge erred in law or reached a conclusion outside the generous ambit within which reasonable decision-makers may disagree. A different view of the welfare balance is insufficient.

The father sought permission to appeal orders made by Connell J concerning the children’s return to Pakistan and by Bennett J concerning the surrender of passports during contact disputes. The children had been removed from Pakistan by their mother and had lived in Wales for about 13 months. Connell J accepted that Pakistan could provide a proper trial and that the mother would not face hardship there, but concluded that the children’s welfare favoured remaining in Wales, with structured contact with their father. The central questions were whether the judge had applied the correct welfare approach and whether his balancing exercise was open to him.

1. Applications dismissed. There was no realistic prospect of establishing that Connell J had erred in law. He had directed himself on proper principles and treated the children’s welfare as the dominant and paramount consideration.
2. Although the mother’s removal of the children from Pakistan was wrongful and the father had obtained an order from a Pakistani court for their return, those matters did not determine the welfare outcome. The court had to consider the children’s current circumstances, including their wishes and feelings, attachment to the mother, settled life and schooling in Wales, and the likely emotional damage caused by an enforced return.
3. The judge was entitled to conclude that returning the children after the passage of approximately 13 months would risk serious damage to their relationship with their father, potentially beyond repair. His assessment also properly took account of the family’s Muslim and Pakistani background and the father’s wish that the children should resume the life for which they had been brought up.
4. An appellate court should not interfere with a welfare balancing exercise merely because it might have assigned different weight to the evidence. The applicant had to show either an error of law or a conclusion outside the generous ambit within which reasonable parents could disagree. That formidable threshold was not met.
5. The father’s challenge to the later passport and contact orders also had no prospect of success. The applications were therefore dismissed, with sympathy for the father and without deciding the first application solely by reference to his substantial delay.

• Court of Appeal (Civil Division): dismissed the father’s applications for permission to appeal against orders of Connell J dated 14 June 1999 and Bennett J dated 19 August 1999.
• Family Division: Connell J directed that the children remain in the jurisdiction after considering their welfare and the legal position in Pakistan. Bennett J made an interim passport-surrender order in connection with contact and abduction concerns.