RVH v TF (Non Hague Convention: Refusal of Summary Return)

In a non-Hague Convention child-removal case, the child’s welfare remains paramount. The court must choose between a summary return and a fuller determination of the underlying dispute, without applying Hague Convention concepts by analogy or adopting a strong presumption in favour of return.

The assessment is fact-specific. Relevant considerations include the child’s connections with each country, time spent there, the comparative legal systems, the availability of a relocation jurisdiction, the effect on the primary carer, the child’s relationship with each parent, and which jurisdiction is best placed to decide the long-term arrangements. Habitual residence is important but not determinative. A summary return was refused where the parties had actively considered several possible future countries and the English court was better placed to determine the unresolved relocation dispute.

The applicant father sought the summary return to Ivory Coast of his two young children, whom the respondent mother had removed to England. The application was made under the inherent jurisdiction because Ivory Coast was not a Hague Convention country.

The children had lived principally in Ivory Coast, although the parents had discussed possible future relocation to several European countries. The mother challenged the suitability of the Ivorian legal and immigration systems and sought to remain in England. The central issue was whether the children’s welfare required an immediate return to Ivory Coast for the dispute to be determined there, or whether the English court should retain the matter for a fuller welfare and relocation determination.

1. Application refused. The court declined to order the children’s summary return to Ivory Coast. Their welfare was the paramount consideration.
2. Following Re J (A Child)(Custody Rights: Jurisdiction) [2005] UKHL 40 and S v S [2014] EWHC 575, Hague Convention concepts could not be extended by analogy to a non-Convention case. The court nevertheless had power, under the welfare principle, to order an immediate return without determining the merits in full.
3. The judge had to make a welfare-based choice between summary return and fuller consideration of the dispute. There was no strong presumption that an unlawfully removed child should return to the country of habitual residence. The starting proposition that return to the home country may be preferable was only one factor, whose weight depended on the circumstances.
4. The relevant evaluation included the children’s connection with each country, the time spent there, differences between the legal systems, the existence of a relocation jurisdiction, the effect on the primary carer, the children’s relationship with the father, immigration arrangements, and which court was best placed to decide the long-term future.
5. The children were habitually resident in Ivory Coast. Their integration in the expatriate community was sufficient, and the parents’ uncertain immigration arrangements did not prevent habitual residence. That finding was significant but not overriding.
6. The evidence established that the Ivorian court could determine a relocation application by reference to the interests of the children and family, and that the father’s opposition was not decisive. The difference between the two legal systems was therefore relevant but not decisive.
7. The balance was finely poised. The children’s relationship with their father favoured return, but the parties had actively considered relocation to several European countries and had not settled their long-term destination. The English court was better placed to determine that unresolved dispute, and a return to Ivory Coast might create a further disruptive move. The parties were expected to address the children’s future arrangements urgently and agree interim direct and indirect contact.