In the matter of S (A Child)

In proceedings under the 1980 Hague Child Abduction Convention, summary dismissal at a directions hearing is permissible only in very limited and truly exceptional circumstances. The merits, including whether a child was wrongfully removed, should ordinarily be decided at the substantive hearing, which is itself summary. The court must account for the forensic context of Central Authority applications and the possibility that initial evidence was prepared from standardised information. Later events may justify premature conclusion where proceedings have lost continuing utility. Summary dismissal may also prejudice procedures under Council Regulation (EC) No 2201/2003 and does not necessarily determine substantive jurisdiction.

The mother, an Irish national, applied through the Central Authorities under the 1980 Hague Child Abduction Convention, alleging that the father had wrongfully removed their 11-year-old child from Ireland to England. The father disputed the factual arrangements and asserted that the Convention was not engaged, also raising habitual residence and alternative Convention grounds.

At the first directions hearing, Keehan J relied on the mother's solicitor's short statement, refused an adjournment to obtain her own evidence, and summarily dismissed the application. The mother appealed, challenging the summary procedure, the conclusion that the Convention was not engaged, and the refusal to permit further evidence. The central issue was whether the application could properly be disposed of before a substantive hearing.

The appeal was allowed. Keehan J was wrong to summarily dismiss the mother's application. The application was restored for further directions, without any indication being given on its merits.

1. Applications under the 1980 Hague Child Abduction Convention are summary and sui generis. The observations in Re D (Children)(Child Abduction: Practice) [2016] 4 WLR 62 were obiter but constituted authoritative guidance. An ultra-summary determination is appropriate only in very limited and truly exceptional circumstances. Re G (Abduction: Striking Out Application) [1995] 2 FLR 410 illustrated the unusual nature of such a course.
2. Where the proposed abbreviation is based on the intrinsic merits of the Hague application, those merits should ordinarily be determined at the substantive hearing. Preliminary merits points should not ordinarily be used to dispose of the application. The guidance in Re W (Children)(Abduction: Striking Out) [2015] EWHC 4002 (Fam) was approved. A premature conclusion may nevertheless be justified where subsequent events deprive the proceedings of continuing utility, as recognised in AF v HS [2015] EWHC 2968 (Fam) and through the principles in Re C (Family Proceedings: Case Management) [2013] 1 FLR 1089.
3. The judge had decided a merits issue, namely whether the child had been wrongfully removed, on the basis of a short solicitor's statement. Nothing exceptional justified that approach.
4. The judge was also wrong to refuse the mother's own statement. The forensic context identified in Re A (A Child) [2016] 4 WLR 111 required recognition that Hague applications are commonly transmitted through Central Authorities and that initial solicitor evidence may be based only on information supplied by the requesting State. Further instructions may be taken after the proposed response is known.
5. Prior scrutiny by both Central Authorities provided an additional reason for caution. Summary dismissal could impede procedures under the Council Regulation (EC) No 2201/2003, and dismissal did not necessarily establish English substantive jurisdiction because that depended on whether proceedings in Ireland took precedence.

• Court of Appeal (Civil Division) — allowed the appeal and restored the mother's Convention application for further directions.
• High Court — Keehan J summarily dismissed the application at the first directions hearing on 8 February 2018.