LM v DR (Return to Non-Convention Country)

In a non-Convention child-removal case, the court must determine whether summary return serves the child’s welfare, which remains the paramount consideration. Return is not automatic, although the court may start from the proposition that it is likely to be better for the child to return to the home country so that future welfare disputes are decided there.

The assessment is individual and fact-sensitive. Relevant matters include the child’s connections with each country, the time spent in each, the effect on the primary carer, the practical ability of each court to conduct an informed welfare hearing, and any demonstrated risk of harm. The court ordered return to Azerbaijan, subject to protective measures and undertakings.

The mother applied under the inherent jurisdiction for the summary return of her two-year-old child, N, to Azerbaijan. Azerbaijan was not a party to the Hague Convention on the Civil Aspects of International Child Abduction 1980. The father had removed N from Azerbaijan to England without the mother’s consent, and proceedings concerning N’s welfare were already pending in the Azerbaijani courts.

The father opposed return, relying on an incident of domestic violence, alleged risks of abduction and corruption, human-rights concerns, and uncertainty about the parties’ immigration and employment positions. The central issue was whether N’s welfare required return to Azerbaijan so that the substantive welfare dispute could be determined there.

1. Order for return. The court ordered N’s return to Azerbaijan, subject to interim protective measures, shared interim care arrangements, undertakings by both parents, and payment by the father of reasonably priced economy flights for the mother, N and himself.
2. Under the inherent jurisdiction, the court could order summary return without determining the substantive welfare dispute. Because Azerbaijan was a non-Convention country, the decision was governed by N’s welfare as the paramount consideration, not by an automatic application of Hague Convention principles. The assessment had to be swift, realistic and unsentimental.
3. The court could begin with the proposition that it was likely to be better for N to return to his home country for future disputes to be resolved there. The weight of that proposition depended on the facts. Relevant considerations included N’s closer connection with Azerbaijan, his length of residence there, his cultural and family connections, the effect on his primary carer, and the practical ability of the Azerbaijani courts to conduct a fully informed welfare hearing.
4. Azerbaijan was N’s home country. He had lived there for most of his life, the parents had made their family home there, he had been removed from there immediately before the application, and the relevant evidence, witnesses and proceedings were principally located there. The Azerbaijani court was already seised of the welfare dispute and was better placed to assess the family’s physical, emotional, social and cultural circumstances.
5. The father’s objections did not outweigh the welfare case for return. The single incident of 8 February 2016 was serious but did not establish that return would expose N to an unacceptable risk. The evidence did not demonstrate that corruption or human-rights concerns would prejudice the father in the family proceedings. The employment and immigration evidence also did not establish a material welfare impediment.
6. The court declined to require prior orders from the Azerbaijani court before return. Instead, it imposed interim arrangements and undertakings, including restrictions on punitive proceedings arising from the removal or earlier allegations, provision of the undertakings to the Azerbaijani authorities, and facilitation of each parent’s freedom to enter and leave Azerbaijan.