C v D

In a summary return application to a non-Hague Convention country, the child’s welfare remains the paramount consideration. Return is discretionary and is not automatic. The court may decide the welfare issue without a full fact-finding hearing where resolving disputed abuse allegations is unnecessary. It may assess the maximum level of risk arising from alleged abuse and consider protective conditions, including their practical enforceability abroad. Relevant matters include the child’s connection with each country, the likely effect of further delay, the foreign court’s ability to determine future arrangements, the absence of a relocation jurisdiction, the child’s wishes and feelings, and the impact on the primary carer. Return was ordered subject to protective conditions formalised by the foreign court.

The father sought the summary return of two children to the UAE after the mother brought them to England for a short trip to renew her biometric residence permit and retained them. The children had lived almost all their lives in the UAE, where their extended family and school were located. The mother alleged historical domestic abuse and opposed summary return, relying on the UAE legal system’s treatment of relocation, children’s wishes and abuse allegations. The court received evidence from Cafcass and a UAE family-law expert. The central issue was whether the children’s welfare required immediate conditional return, or a fuller welfare inquiry while they remained in England. The judge declined oral evidence from the parties and determined the application on the written and expert evidence.

1. Outcome. The application for summary return was granted. The children were to return to the UAE, subject to conditions designed to protect their welfare.
2. Legal framework. The court applied the welfare principle under section 1(3) of the Children Act 1989. Relying on the analysis in J v J (Return to Non-Hague Convention County) [2021] EWHC 2412, and the authorities there discussed, including Re L (Minors) (Wardship: Jurisdiction) [1974] 1 WLR 250 and Re J (A Child) (Child Returned Abroad: Convention Rights) [2005] UKHL 40, the judge treated summary return as discretionary rather than automatic. The focus was the welfare of the individual children in their particular circumstances. The legal systems of the competing countries, the children’s connections, the duration and effects of their stay, and the impact on the primary carer were relevant. The court also considered the guidance identified from Re NY (A Child) [2019] UKSC 49.
3. Evidence and abuse allegations. It was unnecessary and disproportionate to hear oral evidence or conduct a full fact-finding hearing. The court adopted the approach in In re E (Children) [2012] 1AC 144 by making a reasonable assumption about the maximum risk arising from the alleged abuse and assessing that risk in the context of return and available safeguards. Even taking the allegations at their highest, they did not establish a sufficient future risk to prevent return.
4. Welfare balance. The children’s strong and longstanding connections with the UAE, their wider family and school there, and the likely damage from continued separation from their father favoured return. The mother’s inability effectively to seek relocation in the UAE weighed against return, but the judge considered that a relocation application would probably fail even under English welfare principles. The children’s wishes to remain in England were taken into account, but their weight was reduced because of the circumstances of retention, isolation from their father and wider family, and apparent adult influence.
5. Conditions. Return was conditional on withdrawal of the father’s UAE custody application, documentary proof of withdrawal, and a settlement agreement entered as a judgment in the UAE courts. The agreement was to secure the mother’s custody, maintenance, contact arrangements, non-prosecution assurance and protective undertakings. The preconditions were expected to be completed within two months.