S v S

In a non-Convention child-retention case, the court must determine whether summary return or fuller welfare investigation best serves the individual child. The child’s welfare remains paramount. There is no strong presumption that return to the country of habitual residence will be in the child’s best interests, although the court may begin with the proposition that return may be preferable for disputes to be determined there. The assessment is fact-sensitive and should consider, among other matters, the child’s connections with each country, the time spent in each, the ability of each legal system to resolve welfare issues, and the likely impact on the primary carer. The court ordered return to Bermuda because the child’s established home and relationship with his father, together with the availability of support and imminent proceedings there, outweighed the risks associated with the mother’s return.

The applicant father sought, under the inherent jurisdiction, the summary return of the parties’ child from England to Bermuda after the respondent mother retained him in England following an agreed holiday. The mother opposed return, relying principally on her depression, financial insecurity, lack of support in Bermuda, and the effect of return on both her welfare and the child’s welfare.

The court considered whether the child should remain in England while welfare disputes were determined there or return to Bermuda, where he had been born and lived throughout his life and where related proceedings were pending.

1. Applicable principles. The court applied In Re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40. In a non-Convention case, the child’s welfare is paramount and the court must focus on the individual child and the particular circumstances. The court may order summary return without determining the merits, but must choose between summary return and fuller investigation by reference to welfare. Hague Convention principles do not extend to a non-Convention country.
2. Relevant considerations. The assessment included the child’s connection with each country, the time spent there, the availability and suitability of the legal systems, the effect of the decision on the child’s relationship with each parent, and the likely impact on the primary carer. The court also considered the principles in KL (a Child) [2013] UKSC 75, while recognising that these cases are fact-sensitive.
3. Application. The child had been born and brought up in Bermuda, which remained his main home. Retention in England risked damaging his relationship with his father and prejudicing the father’s effective participation in proceedings. Although the mother’s fragile mental health, financial position and reduced support in Bermuda weighed strongly against return, the parties would live separately, medical and family support remained available, and welfare proceedings in Bermuda were listed shortly.
4. Order. Return to Bermuda was held to be in the child’s best interests. The return was made subject to the father’s undertakings, including an immediate payment of $7,500, continuing financial support, and provision for medical insurance, nursery fees and essential furniture. The court urged the parties to reach agreement and avoid further delay.

The judgment was a first-instance decision on an application under the inherent jurisdiction. The proceedings had previously come before Mostyn J without notice.