AW v KJ

In an application for the return of a child removed abroad, the child’s welfare and best interests are paramount. The court must evaluate the practical consequences of return, including the possibility that the child may be separated from the resident parent and placed in unfamiliar care. Parental responsibility and a parent’s wish to restore contact do not determine the outcome. A return order should be made only where it serves the child’s welfare. Where return would risk serious emotional or psychological harm, the appropriate course may instead be a substantive welfare investigation into living and contact arrangements.

The father sought the return of his two-and-a-half-year-old daughter from Russia under the inherent jurisdiction. The mother had removed the child from England in breach of an order prohibiting removal and had cared for her continuously abroad for more than two years. The child had seen her father only once during that period.

The mother opposed return and sought a substantive determination of the child’s welfare and future arrangements. The central issue was whether returning the child to England, potentially without the mother, would serve her welfare and best interests.

1. The father’s application under the inherent jurisdiction for the child’s return to England was refused. The matter was to be listed for a substantive welfare hearing.
2. The child’s welfare and best interests were the paramount consideration under section 1(1) of the Children Act 1989, with regard to the welfare checklist under section 1(3). The court also considered the Article 6 and Article 8 rights of the parents and child. Where the child’s Article 8 rights conflict with those of a parent, the child’s rights prevail.
3. The court accepted that the mother was loving and caring and had adequately provided for the child in Russia. The mother’s wrongful removal and earlier lies did not displace the welfare assessment.
4. The father’s focus on parental rights and the child’s return failed to address the practical consequences of the proposed order. The court had power to order the child’s return, but no power to compel the mother to return. The mother was unwilling to live in England.
5. Returning the child without her mother would risk forcibly separating a very young child from her primary carer and placing her with a father who, after prolonged absence, was effectively a stranger. Placement in local-authority care would create an even greater risk of serious emotional and psychological harm.
6. The importance of the child having a relationship with her father did not justify return. Those aims were better addressed through a proper welfare investigation into residence, living arrangements and contact.