DD, Re (Inward Return Order)

For an inward return application concerning a child aged over 16, the court must determine jurisdiction by applying the child-focused test of habitual residence. The inquiry is factual and centres on the child’s integration in the relevant social and family environment.

Any return application, whether brought under Children Act 1989 or the inherent jurisdiction, is governed by the child’s welfare as the paramount consideration. The wishes of a mature, rational child aged nearly 17 will ordinarily be determinative, unless they are not genuinely held, are the product of undue influence, are irrational, or expose the child to real danger. The inherent jurisdiction should be used only exceptionally.

The father applied for an order requiring the mother to return their 16-year-old daughter from the USA to England. The application was brought under the wardship and inherent jurisdiction, although the judge observed that a specific issue order under section 8 of the Children Act 1989 would ordinarily have been the appropriate route.

The Hague Convention 1980 did not apply because the child had reached the age of 16 when removed. The central issues were whether the child remained habitually resident in England when the application was issued and, if so, whether an inward return order should be made. The parties ultimately agreed that the child should remain in the USA and presented a consent order.

1. Jurisdiction. The court had jurisdiction under article 8 of Council Regulation (EC) No 2201/2003 because the child remained habitually resident in England when the application was issued. Habitual residence is a factual, child-focused inquiry. It requires assessment of the child’s integration into the relevant social and family environment, including day-to-day life, family relationships, school, friends and other significant connections. Parental intention is relevant but not determinative.

2. The child had lived in England with the father, her primary carer, for many years. Her legal status, residence, schooling, family life, friendships and principal connections remained there. Her short and clandestine move to the USA had not produced the necessary degree of integration by the date of issue. The fact that she later became settled and happy in the USA did not alter the position at the relevant date.

3. Applicable approach to return. The judge adopted the principles summarised in Re N [2020] EWFC 35, including that an application under the inherent jurisdiction should be exceptional, and that a proper welfare inquiry must be undertaken. The child’s welfare was paramount, informed by the welfare checklist in section 1(3) of the Children Act 1989. The court also had to consider the child’s wishes and feelings, the adequacy of the evidence, living arrangements on return, oral evidence, any Cafcass report, and whether the other jurisdiction could resolve the parental dispute swiftly.

4. Weight to the child’s wishes. In a case involving a child aged 16 years and 8 months, clear, mature and rational wishes should ordinarily be respected and generally determine the application. Departure from those wishes requires a powerful justification. Possible justifications include undue influence, irrationality or real danger. The child’s mother had influenced her views, but the evidence did not show that the child’s will had been suborned. Her wishes were authentic, consistent, nuanced and mature.

5. A return order would probably have been futile because the mother and child would promptly seek a relocation order. It would also risk damaging the child’s relationship with the father. The father no longer pursued the application. The court therefore granted the agreed order under which the child remained in the USA and was to spend time with the father.

First-instance judgment. The parties reached agreement and presented a consent order. The High Court granted the order sought.