AH v AMH F (Summary return of child to Sudan)

In a non-Convention summary-return application, the child’s welfare remains paramount. There is no presumption that return will be in the child’s interests, although the court may begin with the practical proposition that disputes may appropriately be decided in the child’s home country.

The court must make a swift, realistic and unsentimental assessment of the child’s best interests. It must consider the child’s connections with each country, the effect of return, the availability of proceedings in the foreign jurisdiction, and the child’s wishes and feelings. A summary return order is justified only where immediate return is itself in the child’s best interests.

The mother applied for the summary return of the parties’ ten-year-old son to Sudan. The child had lived there throughout his life and had travelled to England in March 2018 for an agreed period, but the father retained him and enrolled him in an English school.

The mother alleged that the father had acted without her consent and in breach of an existing order. The father said that the child wished to remain in England and would have better education and healthcare there. Proceedings concerning custody had subsequently begun in Sudan. The central issues were whether the child should be returned summarily, and how his welfare should be addressed pending any determination of his long-term future.

1. Summary return principles. The court adopted the principles derived from Re J (A child: custody rights jurisdiction) and summarised in A v B (Wardship: summary return: non convention country). The welfare of the child was paramount. The specialist rules of the Hague Convention did not apply by analogy. The court had power to order immediate return without determining the merits of the long-term dispute, but only because return was in the child’s best interests.
2. There was no presumption that return was necessarily beneficial. The court could, as a starting point, consider whether the dispute should be determined in the child’s home country. The weight of that consideration depended on the circumstances, including the child’s connections with each country, the availability and nature of proceedings abroad, and whether the foreign court could determine the dispute in accordance with the child’s welfare.
3. Habitual residence. Applying the principles summarised in Re B (A Minor)(Habitual Residence), habitual residence was a question of fact focused on the child’s integration in a social and family environment. The child’s nationality, language, culture, education, family connections, length and stability of residence, and the parents’ intentions were relevant, but parental intention was not determinative.
4. The child remained habitually resident in Sudan when brought to England and when the father refused to return him. Although he had begun integrating in England, his lifelong residence, language, culture, schooling and family connections gave Sudan the stronger connection.
5. The child’s wishes to remain in England were considered but given limited weight. He was ten, immature for his age, and his views had been materially influenced by the father. The father’s unilateral retention and interference with contact had caused emotional harm and undermined the reliability of the child’s stated preference.
6. On the welfare assessment, immediate return to Sudan was in the child’s best interests. The Sudanese court could determine the long-term custody issue, and there was no evidence that return exposed the child to a particularised risk of serious harm. The child was ordered to return to Sudan with the mother.