R (Child), Re

In proceedings under the Children Act 1989 following a parent’s unilateral removal of a child within England and Wales, the child’s welfare remains the paramount consideration. The court must apply section 1(1), have regard to the section 1(3) welfare checklist and weigh all relevant circumstances. No automatic summary-return rule, presumption or rule of thumb requires restoration of the former home. The appropriate order may be immediate return or temporary retention, depending on the individual child and the information available. International abduction principles under the 1980 Hague Convention cannot be imported by analogy. At an interim stage, disputed allegations may be considered provisionally. An appellate court should respect the trial judge’s evaluation of welfare factors unless an error of principle or approach is shown.

H was one year old when his mother left the family home in Kent with him and went to the North East. The father sought orders requiring their return to Kent and argued that the removal should be treated like an international abduction. District Judge Grey dismissed the application and declined to transfer the proceedings to Kent. His Honour Judge Heaton QC dismissed the father’s appeal.

This second appeal concerned whether domestic abduction required a summary-return approach and whether the district judge had erred by giving weight to the mother’s disputed allegations and anxiety about returning to Kent at an interim stage.

The Court of Appeal unanimously dismissed the father’s second appeal. Lady Justice Black gave the leading judgment, with Lord Justice Floyd and Mr Justice Baker agreeing.

1. Applicable principles. Re C (Internal Relocation) [2015] EWCA Civ 1305 established that internal and external relocation cases are governed by the same welfare approach. It did not create a new regime for domestic abduction. Proceedings following a unilateral move within England and Wales are ordinarily proceedings under section 8 of the Children Act 1989, determined under section 1(1) and the section 1(3) checklist.
2. No summary-return presumption. The court rejected any general principle, presumption or rule of thumb requiring a child to be returned to the place where he or she formerly lived. Re J (Child Returned Abroad: Convention Rights) [2005] UKHL 40 showed that Hague Convention principles cannot be extended by analogy to non-Convention cases. Summary return may be in a child’s welfare, but it is not automatic. The weight given to that possibility must depend on the individual circumstances.
3. Welfare evaluation. The statutory checklist is neutrally drafted and gives no factor predetermined weight. The judge must consider all relevant information, including disruption caused by a move, the possible effect of a further move on the parent’s wellbeing and the child, medical and family support, the child’s relationship with both parents, and any alleged harm or risk of harm. At an interim stage, disputed allegations may be taken into account even though they have not been finally adjudicated. The judge must do the best possible with limited information and may make further interim orders as evidence develops.
4. Appeal. District Judge Grey applied the correct welfare principles. He was entitled to consider the mother’s allegations and anxiety, and to conclude that the father’s proposed arrangements would not remove the potential adverse effect of returning to Kent. Contact preserved the relationship between father and son, and a guardian’s ability to visit the Kent home did not require H to live there. Applying the appellate restraint described in Re J, there was no basis for interfering with the welfare evaluation.

• Court of Appeal (Civil Division) — the father’s second appeal was dismissed on 20 October 2016.
• Family Court at Newcastle — His Honour Judge Heaton QC dismissed the father’s appeal on 15 March 2016.
• Family Court at Newcastle — District Judge Grey dismissed the father’s application on 5 February 2016 and declined to transfer the proceedings to Kent.