H v N (Inherent Jurisdiction Refusal of Reutrn Order)

An application under the inherent jurisdiction for the summary return of children to a non-Convention country is determined by the children’s welfare, which remains the court’s paramount consideration. Hague Convention concepts and presumptions must not be imported by analogy. The court may start from the proposition that return to the child’s home country may be beneficial, but the weight given to that proposition varies and it is never determinative.

The court may use the first six aspects of the Children Act 1989 welfare checklist and consider the guidance in Practice Direction 12J. A child’s wishes and feelings carry no presumptive precedence. Their weight depends on the child’s age, understanding, reliability and the circumstances, including possible parental influence. Habitual residence is assessed by the child’s integration in a social and family environment, but is not itself decisive of a welfare-based return application.

The father applied under the inherent jurisdiction for the summary return of four children from England and Wales to Pakistan. The mother opposed the application and relied, among other matters, on allegations of domestic abuse, the children’s expressed wishes, their circumstances in England and the likely effect of return.

The children had lived in Pakistan before their removal, although some had previously lived in England. The court considered their habitual residence at the dates of removal and of the domestic proceedings, but recognised that habitual residence was not determinative of the inherent-jurisdiction application. The central issue was whether summary return to Pakistan was in each child’s best interests.

1. Application refused. The court declined to make a summary return order and dismissed the father’s application. The welfare proceedings under the Children Act 1989 were to proceed after the stay was lifted.
2. Under the inherent jurisdiction, the children’s welfare was paramount. The court rejected any automatic return principle and held that the concepts of habitual residence, wrongful removal and retention under the 1980 Hague Convention could not be applied by analogy in a non-Convention case. The court could nevertheless begin from the proposition that return to the child’s home country may be better for disputes about the child’s future, subject to the weight given to that proposition in the individual case.
3. The court accepted that the children were habitually resident in Pakistan when removed and remained so when the mother commenced proceedings in December 2019. It applied the integration-based approach, considering schooling, nationality, language, family relationships, parental circumstances, duration and conditions of residence, and the degree of connection with each country. Habitual residence was not central to the return application itself.
4. It was appropriate to consider the first six aspects of the Children Act 1989 welfare checklist and to take the requirements of Practice Direction 12J as useful guidance when assessing disputed domestic-abuse allegations. The court found it more likely than not that the father had been domestically violent towards the mother on occasions and that the children had witnessed domestic abuse and verbal aggression.
5. The children’s wishes and feelings had no presumptive precedence. Their weight depended on age and understanding and had to be assessed individually. The court found the older children’s consistent opposition to return was substantially grounded in shared negative experience, rather than being merely the product of maternal influence, and gave their views significant weight.
6. Return would destabilise the children, disrupt education and living arrangements, and further damage their relationship with the father. In the short to medium term, allowing the children to remain in England offered a better prospect of rebuilding that relationship and maintaining contact with their wider maternal family.

First-instance decision. No appellate history was stated in the judgment.