Re A and B (Children) (Summary Return: Non-Convention State)

In an application to return a child to a non-Convention state, the child’s welfare remains paramount. A court may make a summary welfare determination where the available material sufficiently identifies what welfare requires. It must decide, on the facts of the individual case, whether further inquiry or a fact-finding hearing is necessary.

Allegations of domestic abuse, and the receiving state’s inability to investigate them or determine a relocation application, are important welfare factors. Neither creates an automatic requirement for a fact-finding hearing or prevents return. The court must weigh their practical effect against all other relevant circumstances.

The mother retained two children in England after travelling from Dubai with them in October 2021. The father applied for their summary return to Dubai, a state not party to the 1980 Hague Child Abduction Convention. The mother alleged that the father had subjected her and the children to domestic abuse, including coercive and controlling behaviour.

Poole J ordered return following a summary welfare hearing, subject to a court-approved settlement agreement in Dubai: Re A & B (Children: Return Order: UAE) [2022] EWHC 2120 (Fam). The mother appealed, principally contending that the judge should have held a fact-finding hearing and that his welfare evaluation was flawed.

The central issue was whether the evidence and the applicable welfare guidance required further investigation before a return order could lawfully be made.

Appeal dismissed. Lord Justice Moylan, with whom Peter Jackson and Warby LJJ agreed, held that the judge’s summary welfare determination and return order were open to him.

1. In a non-Convention return case, the court does not extend the Hague Convention regime by default. It makes a welfare decision in which each child’s welfare is paramount under the Children Act 1989. It may order return without a full investigation of the merits where that course serves the individual child’s welfare. The governing guidance remained that in Re J [2005] UKHL 40 and Re NY [2020] AC 665.

2. The court must decide whether its welfare inquiry is sufficient. Where domestic abuse is alleged, it must consider, in the light of Practice Direction 12J, whether an inquiry or fact-finding hearing is needed and, if so, how extensive it should be. The Practice Direction and Re H-N [2022] 1 WLR 2681 do not require a fact-finding hearing in every case. The necessity and proportionality of such a hearing depend on the evidence, the likely relevance of the allegations if proved, and the issue to be decided.

3. The fact that the Dubai courts would not investigate the mother’s historic allegations, or determine a relocation dispute on the same basis as an English court, did not impose a mandatory fact-finding obligation on the English court. The absence of an effective relocation jurisdiction was a material factor and could be decisive in another case. Here the judge was entitled to assess its practical significance and the likely merits of a relocation application as part of the welfare balance.

4. The judge had substantial evidence, understood the nature and seriousness of the allegations, and was entitled to conclude that further findings would not assist his return decision. He could assess the maximum level of risk disclosed by the allegations, consistently with the approach in Re E [2012] 1 AC 144. His treatment of the children’s wishes, connections with Dubai, family support, schooling, and the proposed settlement agreement disclosed no material error.

5. The late grounds concerning habitual residence and separate representation lacked substance. The settlement agreement, to be entered as a Dubai court judgment before return, was a sensible protective precondition.

• Court of Appeal (Civil Division): The mother’s appeal was dismissed. The return order following a summary welfare determination was upheld.
• High Court, Family Division (Poole J): Ordered the children’s return to Dubai, conditional upon a settlement agreement being entered as a Dubai court judgment: Re A & B (Children: Return Order: UAE) [2022] EWHC 2120 (Fam).