D v D

In an application under the inherent jurisdiction for the summary return of a child to a non-Hague Convention country, the child’s welfare is the paramount consideration. The court may order immediate return without a full welfare investigation where a swift, realistic and unsentimental assessment shows that return is in the child’s best interests. Return is not automatic and there is no presumption that it will ordinarily be highly likely to promote welfare. The court may start from the proposition that return to the child’s country of habitual residence is likely to be beneficial, but the weight given to that starting point depends on the particular circumstances. Protective measures, undertakings and cooperation by local social services may sufficiently address identified risks.

The father applied under the inherent jurisdiction for the summary return of his six-year-old son to Northern Cyprus. The child had been born and habitually resident there, but the mother had brought him to the United Kingdom for an ostensible holiday and later decided not to return. The mother opposed return, relying on allegations of domestic violence, threats and harassment, and the risk of emotional harm to the child if she returned.

The parties accepted the child’s habitual residence and the mother’s retention in the United Kingdom. The child’s guardian supported return subject to protective measures, undertakings and involvement by Northern Cyprus social services. The central issue was whether return, assessed by reference to the child’s welfare, was in his best interests.

1. Return ordered. The child was ordered to return to Northern Cyprus within fourteen days, by no later than 29 December 2016.
2. Under the inherent jurisdiction, the child’s welfare was the court’s paramount consideration. Applying Re J (A Child) (Return to Foreign Jurisdiction: Convention Rights) [2005] UKHL 40, the court had power to order immediate return without a full welfare investigation. Summary return was not automatic. The court had to make a swift, realistic and unsentimental assessment of the individual child’s best interests.
3. The court began from the proposition that return to the child’s country of habitual residence was likely to be in his best interests so that disputes about his future could be resolved there. That starting point carried substantial weight because Northern Cyprus was the child’s home, he had always lived there, had started school there, had a close cultural and linguistic connection with it, and clearly expressed a wish to return.
4. The court took account of the mother’s allegations of domestic violence and the father’s abusive messages. Domestic violence or abusive behaviour between parents created a risk of emotional harm to a child, including harm resulting from the mother’s suffering. However, there was no evidence of direct abuse or harm to the child, and the identified risks could be addressed through the proposed social-services investigation and protective arrangements.
5. The return order was conditional upon undertakings by both parents, including compliance with the existing Famagusta Family Court arrangements, cooperation with Northern Cyprus social services, restrictions on contact and harassment, withdrawal of the father’s abduction proceedings against the mother, and restrictions on the mother removing the child from Northern Cyprus. The papers and judgment were to be sent to Northern Cyprus social services.