Y v S

In a non-Convention child-return case, a judicial protocol may guide the court but cannot displace the paramount welfare principle. Where the protocol’s strict terms are not engaged, its underlying spirit may nevertheless inform the welfare assessment. The court must focus on the individual child and the particular circumstances, including the child’s connections with each country, length of residence, language, family relationships, emotional needs and the likely effects of a further move. A return may be ordered where it best serves the child’s welfare, even if the return causes short-term disruption.

The applicant mother sought the summary return of her six-year-old daughter to Pakistan under the UK-Pakistan Judicial Protocol on Children Matters and the inherent jurisdiction. The child had lived in Pakistan with her mother throughout her life until the respondent father brought her to England. The mother had consented to the initial journey, but the court found that the child was subsequently wrongfully retained in England after the father divorced the mother and established a new household.

The strict terms of the protocol were disputed because the mother had no custody or residence order. The central issue was whether the child’s welfare required return to Pakistan.

1. Application granted. The court ordered that M be returned to Pakistan.
2. The strict terms of the UK-Pakistan Judicial Protocol on Children Matters were not engaged because the mother had no actual custody or residence order. Following Re H (Child Abduction: Mother’s Asylum) [2003] EWHC 1820, however, the spirit of the protocol remained relevant. Its purpose was to protect children from wrongful removal or retention and to support judicial co-operation.
3. The court applied the principles in Re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40. The child’s welfare remained paramount. The protocol could not prevail over a decision of the House of Lords or Supreme Court, and the court had to focus on the individual child rather than apply Hague Convention principles by analogy.
4. The court considered the child’s connection with each country, the length of time spent there, her nationality, language, culture, education, family relationships, emotional needs and the likely effect of a further change. M had spent almost all her life in Pakistan, spoke its language, and had been cared for there by her mother and wider family. Her connection with England was materially weaker, although she was settled and apparently happy in her father’s care.
5. The emotional harm caused by separation from the mother and the severe limitation of meaningful contact were substantial. Any short-term harm caused by return was outweighed by the benefits of returning M to a country, language, community and family environment known to her. The order was made by reference to welfare principles, with the protocol serving only as a qualified guide.