LN (A Child) (Without Notice Application for Summary Return)

On an application for summary return from a non-Convention country, the child’s welfare remains paramount. There is no presumption that return will accord with the child’s welfare. The court may begin from the practical proposition that disputes may conveniently be resolved in the child’s home country, but that proposition depends on identifying the home country and assessing the child’s connections with each state. Relevant factors include nationality, residence, the length of time spent in each country, and the child’s living, social and educational circumstances. Where the court lacks reliable, current information about a child who has lived abroad for a substantial period, it cannot properly order immediate return. A limited order for information may instead be made.

The father, a Spanish national, applied without notice for the summary return of his son, born in England in September 2012. The mother and child travelled to Portugal in June 2014 and were later believed to be in Angola. The father issued proceedings in August 2015, but the application was not pursued promptly and remained stayed for several months.

The child had been outside England and Wales for nearly two years by the hearing. The father relied on A v B, Re S (Wardship: Summary Return: Non-Convention Country) [2015] EWHC 176 (Fam). The central questions were whether the court had jurisdiction and, if so, whether it could properly order the child’s immediate return without current information about his circumstances in Angola.

1. Jurisdiction and immediate return. The court expressed serious doubt whether the child remained habitually resident in England and Wales when proceedings were issued. Even assuming jurisdiction, it could not exercise a discretion to order immediate return.
2. Welfare paramount. The welfare of the child was the overriding consideration. A return order had to be justified by the child’s best interests, rather than by any superseding principle.
3. Application of authority. The court respectfully agreed with all the key themes identified in A v B, Re S (Wardship: Summary Return: Non-Convention Country) [2015] EWHC 176 (Fam), including the absence of a presumption in favour of return, the need for a swift assessment of welfare, and the relevance of the child’s connections with each country.
4. The court had no reliable information about the child’s whereabouts or living, social or educational circumstances in Angola. The child had been abroad for almost two years, over half his life, and might have lived in Angola for as long as he had lived in England. The evidence therefore pointed strongly away from summary return.
5. The application for immediate return was refused. The mother was ordered to provide, within six weeks of service by email, a signed statement describing the child’s current circumstances and answering the father’s evidence. The matter could be restored if a response was received or if there was no response.