S (Abduction: Hague Convention Or BIIa)

A court in England and Wales with substantive jurisdiction under Council Regulation 2201/2003 has power to order summarily the return of a child from another EU Member State. The order concerns the exercise of parental responsibility, and its summary character does not alter that classification.

Where wrongful removal or retention is alleged, the better course, absent good reason to the contrary, is ordinarily to defer a return order until the requested state has determined an application under the 1980 Hague Child Abduction Convention. That route provides a structured and expedited process, inter-court cooperation and stronger enforcement for any subsequent order under article 11(8). The child’s welfare remains paramount, and hearing the child’s voice is important under both instruments.

A father appealed against a summary order made by Gwynneth Knowles J on 13 October 2017 requiring the return from the Netherlands of his 13-year-old son. The child had lived in England with his mother but was not returned after an agreed holiday with his father. The judge found that the English court had substantive jurisdiction and that immediate return was in the child’s best interests.

The mother subsequently commenced proceedings in the Netherlands under the 1980 Hague Child Abduction Convention. At the outset of the appeal hearing, she agreed to the discharge of the English summary return order and to pursue the Convention application initially.

Although the appeal was resolved by consent, the Court of Appeal invited submissions because of the wider importance of whether an English court can order summary return from another EU Member State and, if so, whether it should ordinarily await determination of the Convention proceedings in that state.

1. Disposition. The appeal was resolved by consent and the summary return order was discharged. The court nevertheless gave unanimous guidance because the issue had wider significance. Moylan LJ delivered the judgment, with which Peter Jackson and Patten LJJ agreed.

2. An English court possessing substantive jurisdiction under Council Regulation 2201/2003 has power to order summarily the return of a child from another Member State. Articles 1 and 2(7) give parental responsibility a broad scope that includes deciding where a child is to be. A return order concerns the exercise of that responsibility. Its summary character does not change its nature or displace section 1 of the Children Act 1989, under which the child’s welfare remains paramount.

3. The court rejected the contention that the 1980 Convention gives the requested state exclusive jurisdiction over every form of return order. It governs applications made under that Convention, but does not remove the home state’s power under Council Regulation 2201/2003. The judge had therefore possessed jurisdiction, based on the child’s habitual residence under article 8 or article 10.

4. However, where a child is allegedly wrongfully removed to or retained in another Member State, the better course, absent good reason to the contrary, is ordinarily to defer a return order until the requested state has determined the 1980 Convention application. The more demanding requirement of a particularly compelling reason stated in In re A concerned a requested-state order under article 20 and did not govern the present situation.

5. The Convention route offers practical and procedural advantages. It provides direct assistance in the requested state, a six-week determination obligation and a structured mechanism for cooperation following a non-return decision. A subsequent home-state return order under article 11(8) may also use the expedited enforcement regime in articles 40 and 42, without opposition to recognition where properly certified.

6. Proceedings may properly be commenced in the home state to ensure that it is seised and that its substantive jurisdiction is engaged. That does not mean a summary return order should necessarily be sought or made. Hearing the child’s voice has an important place under both the Convention and the Regulation, although that issue required no determination here.

• Court of Appeal (Civil Division): The father’s appeal was resolved by consent. The summary return order was discharged, and the court gave unanimous guidance on the relationship between Council Regulation 2201/2003 and the 1980 Hague Child Abduction Convention.
• High Court, Family Division: On 13 October 2017, Gwynneth Knowles J made a summary order requiring the child’s immediate return from the Netherlands to England. No neutral citation for that decision is stated.