VB v TR

Where the 1980 Hague Convention does not operate between the United Kingdom and a British Overseas Territory, the court may nevertheless entertain an application under its inherent jurisdiction for the summary return of a child. The child’s welfare remains paramount under Children Act 1989, requiring consideration of the statutory welfare checklist and the linked questions identified in Re NY (a child) [2019] UKSC 49. A clandestine removal and unilateral self-help should ordinarily be reversed where return serves the child’s best interests. The court may recognise a foreign child-arrangements order through the common law, without conducting a full welfare inquiry, subject to public policy.

The mother removed the five-year-old child from Bermuda to England without the father’s agreement and in breach of Bermudian child-arrangements orders. The father sought the child’s summary return. The court held that the 1980 Hague Convention did not apply between the United Kingdom and Bermuda because Bermuda, as a British Overseas Territory, was treated as part of the United Kingdom for Convention purposes. The father instead relied on the court’s inherent jurisdiction. The central issues were whether that jurisdiction could be used, whether the mother had consent or acquiescence, and whether return was in the child’s best interests.

1. Jurisdiction and applicable framework. The 1980 Hague Convention did not apply between the United Kingdom and Bermuda. The father could nevertheless seek summary return under the inherent jurisdiction, as confirmed by Re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40 and Re NY (a child) [2019] UKSC 49. The court had to apply the paramountcy principle in section 1(1) of the Children Act 1989, address the six matters in section 1(3), and work through the eight linked questions identified in Re NY (a child) [2019] UKSC 49.
2. Foreign orders. The common law provides a possible route for recognition of foreign child-arrangements orders. Following C v C (Jersey) [2019] UKPC 40, recognition should generally occur unless contrary to public policy, without a full welfare-based enquiry. The father had not pursued that route.
3. Welfare assessment. The child’s welfare required return to Bermuda. The evidence did not establish that the mother could not obtain necessary treatment there. The child was suffering from separation from his father, had not been enrolled at school in England, and would benefit emotionally from restoration of the relationship. The mother’s asserted consent or acquiescence was rejected.
4. Self-help and order. The mother had acted clandestinely and deceitfully. Unless contrary to the child’s best interests, such self-help should be reversed and the status quo ante restored. A return order was made, subject to further submissions concerning safe travel during the coronavirus emergency. The order allowed for its discharge if the Bermudian court permitted the mother and child to remain in England pending a relocation application. The papers and judgment could be disclosed to the Bermudian court.