R v D

Under Article 11(7) and (8) of Brussels IIa, the court of habitual residence retains jurisdiction after a requested-state court refuses return under the Hague Convention. The retained jurisdiction is a welfare jurisdiction in which the child’s welfare is paramount. An application for summary return must therefore be determined by evaluating the child’s welfare, rather than by simply revisiting the Hague Convention defence. The court must take account of the circumstances of the abduction and the policy underlying the international instruments, while focusing on the child’s immediate circumstances. A material change, such as the abducting parent’s willingness to return with the child, may remove the risk which led to the foreign non-return decision. The court may order interim return where that is in the child’s overall welfare interests.

The father applied for the return of his son to England after the mother retained the child in Poland following an agreed holiday. The Polish court found that the retention was wrongful but refused summary return under Article 13(b) of the Hague Convention, concluding that separation from the mother could expose the child to psychological harm and an intolerable situation.

The English court had previously declared that the child was habitually resident in England and that the English courts had welfare jurisdiction. The application concerned the child’s short-term position pending a full assessment of his long-term future. The central issue was whether the child’s welfare required interim return to England under Article 11(7) and (8) of Brussels IIa.

1. Jurisdiction and governing approach. The court had jurisdiction under Article 11 of Brussels IIa. After a non-return decision by the courts of the state to which a child has been abducted, the court of habitual residence retains jurisdiction to make welfare decisions concerning the child’s future. That jurisdiction includes power to order summary return. The phrase “best interests” in the Regulation’s preamble concerns jurisdiction; the exercise of jurisdiction is governed by the paramountcy of the child’s welfare.
2. Welfare evaluation. The court was required to consider the child’s welfare in the short term. It had to take account both of the circumstances and fact of the abduction and of the policy considerations underlying Brussels IIa and the Hague Convention. Abduction is generally contrary to children’s welfare and the child’s separation from his father was a relevant welfare factor.
3. Change in circumstances. The Polish court’s conclusion under Article 13(b) had depended materially on the prospect that the child would return without his mother. The mother’s evidence that she would return with the child, although reluctantly, constituted a significant change. The risk of harm arising from separation from her was therefore no longer present.
4. Application to the child. The court balanced the child’s settlement in Poland, disruption from a further move, and the mother’s financial and emotional difficulties against restoration of shared care, renewed contact with the father, a fair assessment of the competing long-term proposals, the child’s familiarity with England, and the harm caused by the wrongful abduction. The balance required interim return to England.
5. Orders. Return was postponed briefly to allow the mother to arrange her affairs. She was ordered to return the child to England by 4 pm on 16 May 2016. The child was to be joined as a party, a CAFCASS guardian appointed, and the matter listed for a further hearing concerning the long-term arrangements and contact.

• Polish district court: found the retention wrongful under Article 3 of the Hague Convention but refused return under Article 13(b).
• High Court (Family Division): exercised retained welfare jurisdiction under Article 11(7) and (8) of Brussels IIa and ordered the child’s interim return to England by 16 May 2016.