S v A

In a non-Convention child-return application, the court’s paramount consideration is the welfare of the individual child. There is no strong presumption that a child must be returned to the country of habitual residence. The court may start from the proposition that return to the child’s home country may provide the better forum for deciding the child’s future, but the weight of that proposition varies with the circumstances.

The court must undertake sufficient welfare evaluation for the interim location decision, considering the child’s connections, cultural and family environment, the effect of change, the proposed return arrangements, the foreign court’s powers and the prospects of a meaningful welfare assessment there. Determination of habitual residence is not invariably required and is not decisive.

The father applied under the inherent jurisdiction for the summary return of his four-year-old daughter to Pakistan. The child had lived in Pakistan, Italy and England. The father alleged that the mother had taken the child from Pakistan to Italy by agreement for a temporary visit, then moved with her to England without his agreement. The mother maintained that the move was consensual and opposed summary return.

The court also considered the child’s existing indirect contact with the father, proposed undertakings, the welfare evidence, the legal position in Pakistan and allegations of domestic abuse, which were not determined at this hearing. The central issues were whether summary return was available and whether it served the child’s welfare pending a fuller determination of her future.

1. Summary return ordered. The court made an order for the child’s summary return to Pakistan under the inherent jurisdiction, subject to final terms giving effect to the determination.
2. The availability of an order under section 8 of the Children Act 1989 did not prevent use of the inherent jurisdiction. The court applied the guidance in Re NY (A Child) concerning the preliminary matters to be addressed, including the sufficiency of the evidence, welfare inquiry, proposed arrangements, oral evidence, Cafcass involvement and the powers of the receiving court.
3. Applying Re J (A Child) (Return to a Foreign Jurisdiction: Convention Rights), the judge treated the child’s welfare as paramount. The Hague Convention approach could not be extended by presumption to a non-Convention case. The child’s country of habitual residence was relevant but not determinative. The court could begin with the proposition that return to the child’s home country may be preferable for determination of the child’s future, while weighing that proposition against all the circumstances.
4. The judge determined that the child remained habitually resident in Pakistan when the application was issued. That determination was not essential to the result. Even if the child had become habitually resident in England, the welfare assessment led to the same conclusion. The inquiry remained factual and child-focused, addressing integration, family and cultural connections, language, nationality, duration and stability of residence, and parental intentions as a relevant but non-determinative factor.
5. The delay of more than 12 months did not make summary return impermissible. There was no fixed time limit, although the process should be determined swiftly. Pakistan was the most convenient forum for fuller assessment of the parents’ allegations and the child’s relationship with the father. The proposed undertakings and the evidence concerning Pakistani law provided a sufficiently protective return arrangement and a realistic opportunity for further welfare evaluation.