DA & JA (Children : non-Hague summary return)

In a non-Hague summary return application, the child’s welfare is paramount. The court may order return to a foreign jurisdiction without conducting a full welfare investigation, but return is not automatic and the Hague Convention approach must not be applied by analogy. The court must assess all relevant circumstances, including the child’s connections with each country, nationality, residence, culture, education, family relationships, the length and nature of time spent in each jurisdiction, differences between legal systems, and the effect on the primary carer. A return may be ordered where, viewed cumulatively, the child’s welfare is best served by welfare issues being determined in the home country.

The father applied under the inherent jurisdiction for his two children, who were living in England with their mother, to be made wards of court and returned summarily to Nigeria. The parents disagreed about whether the family had relocated to England or had retained Nigeria as its home. Nigeria was not a signatory to the Hague Convention, so the application was determined outside the Convention framework.

The central issues were whether the children had been removed from Nigeria without the father’s consent, which country had the greater connection with them, and whether their welfare was best determined in Nigeria without a full welfare investigation in England.

1. Jurisdiction and governing principles. The court had jurisdiction under the inherent jurisdiction because the children were present in England. The welfare principle therefore applied. The Child Abduction and Custody Act 1985 and Hague Convention framework did not apply because Nigeria was not a signatory. The approach in Re J (Child Returned Abroad: Convention Rights) [2005] UKHL 40 governed the application.
2. In a non-Hague case, the court may order immediate return without undertaking a full investigation of the merits. Welfare remains paramount. Summary return is not automatic, and the Convention preference for return to the home jurisdiction must not be imported, even by analogy.
3. The court should consider cumulatively the children’s connections with each country. Relevant factors include nationality, residence, language, race or ethnicity, religion, culture, education, time spent in each country, the absence or presence of objection, differences between legal systems, and the effect of return on the primary carer. The list is non-exhaustive.
4. On the evidence, the family had been habitually resident in Nigeria by July 2017. There had been no agreement to relocate permanently to England. Nigeria remained the children’s country of greater connection, notwithstanding their periods in England, dual nationality and the younger child’s greater proportion of life spent there. The mother’s proposed difficulties on return did not establish that the children’s welfare required the dispute to be determined in England.
5. The children’s welfare was best served by a fairly swift return to Nigeria so that their welfare, including any question of relocation to England, could be determined by the Nigerian courts. The judge preferred that return should take place in the mother’s care and invited counsel to consider practical arrangements.

Not stated in the judgment.