D v O

Under Article 11(7) of Brussels II Revised, following a non-return order made under Article 13 of the 1980 Hague Convention, the court of the child’s habitual residence retains jurisdiction to examine custody and welfare. The court may order the child’s summary return to that jurisdiction where return is necessary to enable effective welfare decision-making. The return decision is itself welfare-based, with the child’s welfare paramount, but it is not the final determination of the country in which the child should live. The court should adopt a purposive and prompt procedure so that the case does not fall between jurisdictions. A parent’s failure to participate orally does not necessarily prevent the court from deciding the application where that parent had proper notice, access to interpretation, and a genuine opportunity to make written representations.

The father sought an order under Articles 11(6)–(8) of Brussels II Revised for the summary return of J, aged nearly 10, to England. J had been taken to Poland for an authorised holiday and retained there after the English court refused permission to extend the stay. The Polish court later refused the father’s application for summary return under Article 13(b) of the 1980 Hague Convention. The father then applied in England for an Article 11(7) welfare-based decision and offered extensive undertakings concerning the mother’s and child’s protection on return.

The mother did not attend the substantive hearing or obtain representation, but communicated through Polish lawyers and supplied written material. The central issues were whether the English court retained jurisdiction, whether the parties and child had been given the opportunities required by Article 42, and whether J should return so that long-term welfare issues, including serious unproved allegations, could be determined.

1. Jurisdiction and procedure. The Polish non-return decision was based on Article 13 of the 1980 Hague Convention. The English court therefore retained jurisdiction under Article 11(6)–(8) of Brussels II Revised. The father’s application was a proper and purposive use of the Article 11(7) gateway. The court should act promptly so that welfare decision-making does not fall between jurisdictions.
2. Nature of the inquiry. Article 11(7) permits the court to examine custody and welfare and to make the range of orders ordinarily available in that inquiry. The court’s welfare jurisdiction includes power to order a summary return where that is necessary to facilitate a final welfare determination. The return order is not a final decision that J should live permanently in England. The mother’s proposed long-term relocation to Poland remained to be considered through a full welfare inquiry.
3. Fair hearing and Article 42. J had been given an opportunity to be heard through her Guardian and counsel. The mother had notice of the proceedings, access to an interpreter, and repeated opportunities to participate and make written representations. Her decision not to engage orally did not prevent a fair determination.
4. Welfare assessment. The court treated J’s welfare as paramount and considered the Welfare Checklist. It gave substantial weight to the Guardian’s evidence that continued separation from the father and paternal family created a serious long-term loss, while recognising that return would cause disruption and that the allegations of sexual abuse had not been adjudicated. The English court was better placed to complete the outstanding welfare and fact-finding process.
5. Disposition. The court ordered J’s summary return to England. It requested enforcement through the central authorities, agreed to issue the Brussels II Revised certificate, and required an undertaking from the father not to enforce the order for 21 days. The order was to be translated and expedited.

The judgment describes earlier proceedings in England and Poland. The Polish first-instance court refused the father’s application for J’s summary return under Article 13(b) of the 1980 Hague Convention. The father’s appeal was refused. This court then granted the father’s Article 11(7) application and ordered J’s summary return to England.