H (Children)

A hearing on an application for the summary return of children is not converted into a full welfare determination merely because welfare evidence is received. If that evidence defeats peremptory return, the court should not dismiss the originating summons in its entirety where it also seeks return following a substantive merits hearing. The alternative issue should remain available and be listed for an early full investigation. On the facts, the alternative relief could properly proceed through the originating summons; a separate C(1) application under the Children Act 1989 was not required.

Following divorce proceedings in Dominica, custody of three children was given to the father. During an access visit, the mother wrongfully removed them to England. Dominica was not a party to the 1980 Hague Convention. The father therefore issued an originating summons seeking both summary return and return following a substantive determination.

Bracewell J heard a CAFCASS officer’s evidence concerning the children’s allegations of chastisement and threats of self-harm. She refused summary return but dismissed the originating summons in its entirety. The appeal concerned whether that hearing had been a full welfare determination and whether the alternative relief could continue.

1. Appeal allowed. The order dismissing the originating summons in its entirety was set aside. The summons was revived so that the issues raised by the alternative claim for return could receive a full trial.
2. Nature of the hearing. The hearing before Bracewell J was directed principally to summary or peremptory return. The CAFCASS evidence raised serious welfare concerns, but the hearing lasted only about two hours and there had been no full investigation of the children’s circumstances or welfare. The father’s reply evidence had also arrived too late for consideration. It was therefore understandable to refuse immediate return, but the hearing could not properly be treated as a final welfare determination.
3. Effect on the originating summons. Refusal of summary return did not determine, or extinguish, the alternative application seeking return in any event. The judge was wrong to dismiss the summons as a whole. The Court of Appeal also rejected as plainly unfounded the submission that the father could not pursue the alternative relief through the originating summons and instead had to issue a C(1) application under the Children Act 1989.
4. Further procedure. The parties were invited to agree directions for an early substantive hearing. If they could not agree, Mr Justice Bennett would determine the details. The court noted that a safeguarded return pending a merits investigation might have been considered, but that course had not been advanced below.

• Court of Appeal (Civil Division): allowed the appeal and set aside the order dismissing the originating summons in its entirety. The summons was revived for a full trial of the alternative return application.
• Principal Registry of the Family Division: Bracewell J refused summary return after hearing CAFCASS evidence but dismissed the originating summons in its entirety.