Re G (Inherent Jurisdiction Return: Allegations of Domestic Abuse: Fact Finding)

In proceedings seeking the summary return of a child under the inherent jurisdiction, the child’s welfare remains paramount. The court may order return without a full merits investigation, but must decide whether the evidence is sufficiently current and whether the child’s welfare can properly be assessed summarily. A fact-finding hearing may be required where allegations of domestic abuse materially affect that assessment.

Findings must be based on the evidence viewed holistically. The court must avoid stereotypical assumptions about victims, distinguish abuse from behaviour that is merely directive or selfish, and assess credibility with care. Findings should be confined to matters relevant to the eventual welfare decision. The court may investigate matters germane to an asylum claim without becoming a substitute for the Secretary of State’s decision-maker.

The father sought the summary return of his 11-year-old son, G, to country X under the inherent jurisdiction. G had travelled to this jurisdiction with his mother in October 2020 and had not seen or spoken to his father or paternal family since then. The mother opposed return and alleged persecution in country X, domestic abuse by the father, and physical and sexual abuse of G by the father and paternal uncle.

Both the mother and G had been granted asylum in this jurisdiction. The court therefore could not implement a return order, although it could make one and could investigate matters relevant to the asylum claim. A fact-finding hearing was held to determine the disputed allegations and facts relevant to the future welfare determination.

The court made findings of fact following a fact-finding hearing. The mother had not established that she or G had been victims of the alleged domestic, physical or sexual abuse. The allegations concerning G’s father and paternal uncle were fabricated or unsupported. The mother had removed G from country X without the father’s knowledge or consent, using passports belonging to relatives, and had given a false account of her arrest, detention and journey to the United Kingdom.

1. Inherent jurisdiction. The welfare of the child was paramount. Under [2006] 1 AC 80, the court could order immediate return without a full investigation, but the approach was not governed by an extension of the 1980 Hague Convention. The relevant evaluation concerned the child’s home country and welfare, including the factors identified in [2019] UKSC 49.
2. Need for fact-finding. The disputed allegations were relevant to the welfare decision that would follow. The court therefore considered the allegations in accordance with Practice Direction 12J and the principles summarised in [2022] EWHC 108 (Fam). The burden lay on the person making each allegation and the standard was the balance of probabilities.
3. Assessment of evidence. The court considered the evidence on a wide canvas and assessed each item in the context of the totality. Lies about some matters did not automatically establish that all evidence was false, applying the approach in [1981] QB 720. The court avoided stereotypical assumptions about how victims present their accounts and focused on consistency with other evidence, as advised in [2018] EWCA Civ 1391.
4. Domestic abuse. Behaviour could remain relevant to welfare even where it did not meet the definitions of coercive or controlling behaviour in Practice Direction 12J. The court also distinguished abuse from behaviour that was merely directive, assertive, stubborn or selfish, having regard to intention and harmful impact.
5. Identification evidence. CCTV and expert identification evidence required caution. The court applied the guidance in [2010] EWCA Civ 344 and [1977] QB 224, while treating the expert’s opinion as evidence capable of assisting, rather than determining, the factual decision.
6. Scope of inquiry. The court was not reviewing or remaking the Secretary of State’s asylum decision. Its findings could nevertheless be germane to any later reconsideration of asylum status.

The findings were to inform a later welfare hearing. No operative return order or costs order was recorded in this judgment.