In re J (a child) (FC)

In an application to return a child summarily to a non-Convention country, the individual child’s welfare is paramount under the Children Act 1989. Hague Convention rules, technical concepts and presumptions must not be imported by analogy.

The court may order an immediate return without investigating the full merits. It may begin with the likelihood that the child is better served by adjudication in the home country, but that proposition has no fixed weight. The assessment must consider the child’s connections, the disruption caused by moving or remaining, the foreign court’s ability to determine the real dispute, possible harm and the effect on the primary carer. Cultural difference creates no automatic preference, but relevant differences between legal systems may be decisive. An appellate court may disturb the trial judge’s balancing exercise only where the decision is plainly wrong.

F was born in the United States but was also a citizen of the United Kingdom and Saudi Arabia. His British and Saudi mother retained him in England after the father had agreed that they could remain while she completed a degree. Following the breakdown of the parents’ marriage, the Saudi father applied under section 8 of the Children Act 1989 for F’s summary return to Saudi Arabia.

Hughes J refused return. He found a serious risk that the father might revive allegations concerning the mother which could damage F’s interests under Saudi law. The judge instead made a residence order in the mother’s favour. The Court of Appeal allowed the father’s appeal in Re J (Child Returned Abroad: Human Rights) [2004] EWCA Civ 417; [2004] 2 FLR 85, despite accepting that the judge had directed himself correctly.

The House considered both the permissible scope of appellate intervention and the proper welfare approach to summary-return applications involving countries outside the Hague Convention.

1. Disposition. The appeal was allowed unanimously and Hughes J’s orders were restored. Baroness Hale delivered the substantive opinion. Lords Nicholls, Hoffmann, Walker and Brown agreed with all her reasons.

2. Appellate intervention. Per Baroness Hale, the Court of Appeal had no proper basis for disturbing the judge’s findings about the risk that the father would revive damaging allegations. Those findings depended on credibility and oral evidence and were open to the trial judge. Applying Piglowska v Piglowski [1999] 1 WLR 1360, an appellate court could not substitute its own assessment.

   The weight assigned to that risk was also for the trial judge. Under G v G (Minors: Custody Appeal) [1985] 1 WLR 647, intervention was permissible only if the decision was plainly wrong, showing that far too much weight had been given to a factor. That threshold was not met.

3. Non-Convention returns. Per Baroness Hale, section 1(1) of the Children Act 1989 made F’s welfare paramount. No statute or authority permitted the rules, technical concepts or policy of the Hague Convention to be extended to non-Convention countries. Nevertheless, welfare could justify an immediate return without a full English determination of the merits.

   There was no strong presumption of return and no analogue of the Convention’s article 13(b) defence. A judge could begin with the proposition that adjudication in the child’s home country was likely to be preferable, but its weight varied with the circumstances.

4. The welfare assessment. Per Baroness Hale, relevant matters included the child’s common-sense connection with each country, time spent there, disruption, culture, religion, education, risk of harm and the effect on the primary carer. One culture was not inherently preferable to another. The foreign legal system was nevertheless relevant where it might be unable to determine the real issue, including whether the child should live elsewhere. The absence of any relocation jurisdiction could be decisive.

   The specific concern about the father’s allegations properly weighed against return. The trial judge had erred by leaving the absence of a Saudi relocation jurisdiction out of account, but that factor could only strengthen the case against summary return. The approach in Re JA (Child Abduction: Non-Convention Country) [1998] 1 FLR 231 was preferred to that in Osman v Elasha [2000] Fam 62.

5. Human rights. Per Baroness Hale, there was no real risk of a particularly flagrant Convention breach abroad. The domestic–foreign distinction under article 8 added nothing once the child’s connections and the effect on the parent were included in the welfare inquiry. As an additional observation, article 20 of the Hague Convention showed that fundamental sex discrimination could permit, though not require, refusal of return if that article applied.

6. The case was not remitted merely because fuller evidence about Saudi law might have been available. The father had not satisfied the requirements for fresh evidence, although he remained free to make a new application concerning the child’s future.

1. House of Lords: In In re J (a child) (FC) [2005] UKHL 40, the House unanimously allowed the mother’s appeal and restored Hughes J’s orders.
2. Court of Appeal: In Re J (Child Returned Abroad: Human Rights) [2004] EWCA Civ 417; [2004] 2 FLR 85, the court allowed the father’s appeal and directed summary return, although it accepted that Hughes J had correctly stated the governing legal principles.
3. High Court, Family Division: Hughes J refused the father’s application for summary return to Saudi Arabia. He made a residence order in the mother’s favour, with reasonable contact for the father.