I and L (Children), Re (Rev1)

In welfare proceedings concerning children habitually resident abroad, the court’s paramount consideration was the children’s welfare under Children Act 1989, s 1. The court was entitled to determine whether the children should return to their place of habitual residence, despite the applicant parent’s deliberate forum and process shopping. Mature wishes and feelings required due weight, but remained one part of the welfare evaluation. Where the evidence showed that return best served the children’s physical, emotional and educational needs, and preserved family life, the court could permit return and leave future disputes to the courts of the place of habitual residence. The application was dismissed.

The father applied under the inherent jurisdiction after bringing his two children from South Africa to England for an agreed period of contact and then seeking to prevent their return. The children and their mother had been habitually resident in South Africa. The parents had signed a South African parenting agreement providing for the mother’s primary care, regular contact with the father and the children’s return after the visit.

The father had signed consent documents in circumstances in which he had already decided to seek intervention from the English court. The court considered whether the children should remain in England in the father’s primary care or return to South Africa with their mother, subject to continuing contact with the father.

1. Application dismissed. The mother was given liberty to return to South Africa with the children when it became safe to travel. The actual return date was deferred pending further written submissions because of the Covid-19 restrictions.
2. The court had jurisdiction under s 3(1)(b) of the Family Law Act 1986, based on the children’s presence in England and Wales. The father’s decision to commence welfare proceedings pre-emptively had avoided the usual framework of proceedings under the 1980 Hague Convention and secured determination under the paramountcy principle in s 1 of the Children Act 1989.
3. The children’s welfare was the court’s paramount consideration. Their physical, emotional and educational needs were best served by returning to South Africa, their place of habitual residence. Their wishes to return were expressed with a reasonable degree of maturity and were therefore entitled to due weight. The proposed change of circumstances and continued separation from their mother and stepfather created a significant risk of harm.
4. Both parents were capable of meeting the children’s needs, notwithstanding serious criticism of their past conduct. The parenting agreement represented an agreement to put past conduct aside and should be given full effect. Future disputes about the children’s upbringing were best adjudicated in South Africa.
5. The children could travel on their existing passports. Any dispute about restoring their surnames was to be raised before the South African court. The court also recorded that the remote Zoom hearing had proceeded successfully without disadvantage.