D (A Child), Re

Following a refusal by a foreign court to return a wrongfully retained child, the court of the child’s habitual residence exercises an original welfare jurisdiction through the gateway of Articles 11(6)–(8) of Council Regulation (EC) No 2201/2003. That jurisdiction includes the power to order a summary or interim return before determining final custody. The court must decide whether summary return or a fuller welfare inquiry best serves the child’s welfare. A summary return may be appropriate where it facilitates a proper welfare decision and preserves the child’s relationship with both parents. If a return order is made, the court may issue the Article 42 certificate only after satisfying the prescribed hearing and non-return-decision requirements.

The father applied under Articles 11(6)–(8) of Council Regulation (EC) No 2201/2003 for the return of his four-year-old daughter from Poland to England. The parents and child had been habitually resident in England, but the mother wrongfully retained the child in Poland. The Polish court accepted the wrongful retention but refused return under Article 13(b) of the 1980 Hague Convention. The father then commenced proceedings in England. The central issues were whether the English court had jurisdiction to order a summary return before a final custody decision, whether return was in the child’s welfare interests, and whether the requirements for an Article 42 certificate were met.

1. Jurisdiction. The refusal of return by the Polish court triggered Articles 11(6)–(8) of Council Regulation (EC) No 2201/2003. The English court exercised its original and complete jurisdiction under Article 8, in conjunction with Articles 10 and 11(7), rather than an appellate jurisdiction over the Polish decision. The court therefore had the full range of powers available under the Children Act 1989 and wardship.
2. Summary return. The court had power under the Article 11(7) gateway to order a summary return to England before a final determination of custody. That conclusion was supported by Re A, HA v MB [2008] 1 FLR 289, M v T (Abduction: Brussels II Revised, Art 11(7)) [2010] EWHC 1479 (Fam), and, by analogy, Re J (A Child: Custody Rights Jurisdiction) [2005] UKHL 40. Povse v Alpago C-211/10 confirmed that an Article 11(8) return judgment need not be preceded by a final custody judgment.
3. The choice between summary return and a full welfare inquiry was itself a welfare decision. The child’s welfare was paramount under section 1(1) of the Children Act 1989. The welfare checklist need not be applied mechanically when deciding whether to order summary return, although it should guide the court after return when determining substantive orders.
4. On the available evidence, return was required to permit a proper welfare assessment, including assessment of the child’s relationship with and care by both parents. The identified risks were manageable through the father’s undertakings and the protection of legal representatives, the child’s separate representation, the court, social services and the police. The child was ordered to return to England by 30 March 2011.
5. The court considered the matters in Article 42(2), including opportunities to be heard and consideration of the reasons and evidence underlying the Polish non-return decision. It issued the Annex IV certificate. A transfer to Poland under Article 15 was refused at that stage.