S (A Child),Re

On an urgent interim application, the court may proceed on the basis that a child remains habitually resident in England where the child has lived here and has been peremptorily removed, even though the ultimate issue remains open. Where removal and retention are arguably lawful and the Hague Convention does not apply, wardship may provide the route for securing return, subject to Children Act s 100(4). An immediate return should not be ordered where the welfare case is not clear-cut. The issue should be determined promptly on proper evidence, including enquiries in the country where the child is living.

The parents sought permission to appeal orders made by HHJ Hughes QC in urgent care proceedings concerning their seven-year-old daughter. After local-authority concerns about the child’s living conditions, the mother took her to Spain and placed her with the father and his family. The judge warded the child, ordered her return to England by a specified time, attached a penal notice and directed an imminent hearing.

The parents argued that the removal and retention were lawful, that the child had become habitually resident in Spain, that the court lacked jurisdiction and that leave under Children Act s 100 had not properly been granted. They also challenged the welfare decision requiring immediate return. The central issues were the court’s interim jurisdiction and the proper welfare approach pending an interim care-order hearing.

Appeal allowed in part. The wardship order was upheld, but the order for the child’s peremptory return was set aside and stayed pending determination of the interim care application.

1. Habitual residence and interim jurisdiction. On the urgent material, it was open to the judge to proceed on the basis that the child had not lost her habitual residence in England. She had lived here throughout and had been removed peremptorily, albeit by one parent. The ultimate question remained open for determination on proper evidence and full argument.
2. Leave under Children Act s 100. If the removal and retention were lawful and the Hague Convention did not apply, wardship was the only identified route by which the child could be returned to England and Wales. It was therefore open to the judge, on the emergency information, to conclude that the result could not be achieved through an order within s 100(5), satisfying s 100(4)(a). The evidence of the child’s recent condition also made it open to conclude that, without exercise of the inherent jurisdiction, she was likely to suffer significant harm.
3. Welfare decision. The immediate return order was not justified on the material then available. This was not plainly a conventional kidnapping case. The welfare comparison between living with the paternal family in Spain and living with foster parents in England was not so stark as to require peremptory return. The decision should instead be made after evidence from the parties, enquiries in Spain and, if possible, representation for the child.
4. Directions. The matter was to return to HHJ Hughes for directions, with an interim care-order hearing within fourteen working days. The question of return was to be reconsidered in that hearing. The parents’ arguments on habitual residence and the application of the Hague Convention remained open.

• Court of Appeal (Civil Division): [2010] EWCA Civ 465. The appeal was allowed to the extent that the peremptory return order was set aside and the question of return was remitted for reconsideration after an interim care-order hearing. The wardship order remained in force.
• Principal Registry of the Family Division: HHJ Hughes QC made the challenged wardship, return and related directions orders on 19 March 2010.