Zaranika v Musa

In an interim welfare decision concerning a child retained abroad, the child’s welfare is the paramount consideration. The court is not required to defer to pending or contemplated Hague Convention proceedings where their existence is uncertain and progress is ineffective. A temporary return order may be made to serve the child’s immediate welfare without determining longer-term living arrangements. The child’s wishes and feelings should be given appropriate weight, while recognising that their significance may require further assessment in light of updated circumstances. An order for return does not create any presumption that the child should ultimately live with the parent seeking the return or remain in the jurisdiction.

The parties were Zimbabwean citizens and parents of L, nearly 13. The child had lived in England for the first 11 years of her life before travelling to Zimbabwe with her father in October 2017. The circumstances of the journey and any consent were disputed, and the father faced a criminal charge under Child Abduction Act 1984, section 1.

The mother sought the child’s return. Although an application had been made through the ICACU under the Hague Convention, there was no evidence that effective proceedings had been commenced in Zimbabwe. The child was settled and successful at school in Zimbabwe but expressed a strong preference to return to England. The issue was whether an interim order should require the father to cause her return, without deciding the longer-term arrangements.

1. Interim return ordered. The father was ordered to cause L to return to England and Wales after the end of her current school term. The order was interim and welfare-based.
2. Paramount consideration. The court made L’s welfare its paramount consideration. There was no scope for ordering her return to correct any wrong allegedly suffered by the mother.
3. Comity and Hague Convention proceedings. Comity did not justify deferring the welfare decision. There was no evidence that effective Hague Convention proceedings had been issued in Zimbabwe, and the application had progressed very slowly. The court was therefore entitled to act on the welfare evidence before it.
4. Welfare assessment. L had spent most of her life in England, expressed a clear and strong preference to return there, and would benefit from returning at least for the Christmas school holiday. Her happiness and educational success in Zimbabwe, musical abilities, family connections and the father’s intended future residence were taken into account but did not outweigh the immediate welfare benefits of a return.
5. No determination of final arrangements. The order expressly left all interim and long-term issues at large. It created no assumption that L should live with her mother, remain in England, or avoid returning to Zimbabwe. The proceedings were transferred to the local family court for an urgent hearing, including an up-to-date face-to-face assessment by Cafcass.
6. Travel arrangements. The father remained obliged to cause L’s return whether or not an accompanying adult could be arranged. A request was made to the British High Commission in Harare to consider sympathetically a visa for a suitable relative, but that request was not a condition of the return order.