U (Children)

Under the UK-Pakistan child-abduction protocol, the English court should ordinarily avoid exercising jurisdiction beyond ordering the child’s return where an application is made expeditiously. That restraint is not absolute. Exceptional jurisdiction may be exercised where delay is so substantial that, by analogy with the public-policy exception in the 1996 Hague Convention, recognition of the foreign order would be problematic. A three-year delay in seeking enforcement was fatal to a summary-return application. The children’s exceptionally strong and consistent wishes and feelings provided additional support for refusing return.

The father sought the return to Pakistan of three children who had been brought to England in 2010. A Pakistani Guardian Court had granted him custody in 2011, and that decision had been unsuccessfully appealed before a further appeal was withdrawn. He commenced English wardship proceedings in May 2014, nearly three years after the custody order. The children were settled in Manchester and expressed strong wishes to remain there and have no contact with him.

The application raised the effect of the January 2003 UK-Pakistan child-abduction protocol, the significance of delay, and the weight to be given to the children’s wishes and feelings.

1. Application dismissed. The father’s application for the children’s return to Pakistan was dismissed. The location order was also dismissed and the passports of the mother and children were ordered to be returned.
2. The January 2003 UK-Pakistan protocol was a bilateral agreement between the judiciaries. It did not have the status of a governmental treaty or the equivalent status of the 1996 Hague Convention. Its language contemplated that the English court would ordinarily exercise jurisdiction only to order return where a child had been removed from Pakistan and the application had been made expeditiously.
3. That restraint was not absolute. The court could exceptionally exercise jurisdiction where the circumstances justified it. The court treated the reasoning concerning stale orders in LAB v KB [2010] 2 FLR 1664, as approved in Re L [2012] EWCA Civ 1157, as relevant by analogy.
4. The father’s delay of nearly three years after the Pakistani custody order, without a satisfactory explanation, was of itself fatal to a summary-return application. The children’s exceptionally strong wishes and feelings, expressed consistently and supported by their settled life in Manchester, fortified that conclusion. The court did not need to determine whether those views resulted from maternal influence.
5. The judge remained concerned that the children had grown up without paternal contact or influence. The mother therefore agreed to provide an email address through which the father could communicate with the children no more than monthly, with additional birthday communication for the girls, and to use her best endeavours to encourage replies.