S (Wardship: Summary return: non-Convention country)

In a non-Convention summary-return application, the child’s welfare remains paramount. The court must make a swift, realistic and unsentimental assessment of the child’s best interests and must not apply Hague Convention concepts by analogy.

There is no presumption that return will serve the child’s welfare. The court may nevertheless begin from the practical proposition that it may be better for disputes about the child’s future to be determined in the child’s home country. The weight of that proposition depends on the child’s connections with each country and on whether the foreign courts can determine the dispute. Differences between legal systems may be decisive in some cases, but should carry little weight where the child and family have a very strong connection with the foreign country.

The mother applied in wardship for the summary return of her two-year-old son to Abu Dhabi, where he had lived throughout his life. She alleged that the father had wrongfully removed him from the UAE and brought him to England. The father denied abduction, resisted return and sought further evidence concerning immigration status and the ability of the UAE courts to determine future arrangements.

The court dismissed the adjournment application for expert evidence. It then considered the competing accounts, the child’s habitual residence and connections, the parents’ circumstances, and whether the courts in Abu Dhabi were better placed to resolve welfare disputes.

1. Adjournment. The application for expert evidence about UAE immigration and family law was dismissed. The mother had produced documentary evidence of a valid visa and the father had available routes to enter or reside in the UAE. The strong and longstanding connection of the child and both families with the UAE meant that differences between the legal systems should carry little weight.
2. Applicable principles. Applying Re J (A Child) (Custody Rights: Jurisdiction) [2006] AC 80, the court held that welfare was paramount. Hague Convention concepts were not to be applied by analogy. The court had power to order immediate return without a full merits investigation, but return had to be justified by the child’s best interests. There was no presumption that return would necessarily accord with those interests.
3. The court was required to undertake a swift, realistic and unsentimental assessment. Relevant considerations included the child’s connections with each country, the time spent in each, the cultural and family environment, and whether the foreign court could determine disputes about residence and welfare. The absence of a relocation jurisdiction could be decisive, although strong connections with the foreign country could substantially reduce the weight of legal-system differences.
4. Application. The evidence established, for the purposes of the summary process, that the father had removed the child from the UAE rather than implementing a consensual relocation. The child had lived there all his life, was habitually resident there, spoke Arabic as his first language and had close relationships with both extended families. His separation from his mother, his primary carer, had caused emotional harm.
5. The father’s allegations concerning the mother’s care did not justify withholding return. The Abu Dhabi courts were already seised and were better placed to resolve the factual and welfare disputes. It was overwhelmingly in the child’s welfare interests to return to the UAE with his mother as swiftly as arrangements could be made.