PT v CW & Ors

Under the inherent jurisdiction, wrongful retention does not create an automatic obligation to return a child. The court must decide whether summary return is in the child’s best welfare interests, with welfare remaining paramount.

The inquiry should be proportionate but sufficiently thorough to address the relevant welfare factors. It may include the child’s connection with each country, wishes and feelings, language, culture, education, the effect of change, harm suffered or anticipated, the capacity of each parent to meet the child’s needs, and the ability of the receiving court to determine future arrangements.

Return is not ordered as punishment for wrongful retention. In this case, continuing emotional harm from the children’s impaired relationship with their father outweighed the disruption of return.

The applicant father sought the summary return to England of his two daughters, who had been retained in Spain since 2017. The Spanish courts ultimately set aside earlier orders and determined that England and Wales retained jurisdiction. The application was made under the inherent jurisdiction because the Hague Convention route was no longer available.

The children, represented by their guardian, opposed return. They were settled in Spain and strongly wished to remain there. The central issue was whether, after a welfare inquiry, summary return would promote their welfare and enable the English courts to determine their future arrangements.

1. Jurisdiction and applicable principles. The court retained jurisdiction under Article 10 of Council Regulation EC2201/2003. Article 18 of the Hague Convention 1980 did not prevent an order under the inherent jurisdiction. The governing consideration was the welfare of each child, which was paramount.
2. The court adopted eight principles. Summary return was a welfare decision, not an automatic consequence of wrongful retention. The inquiry was focused on whether return was in the children’s best interests, bearing in mind that the court in the receiving jurisdiction might be best placed to decide their future arrangements. The principles under section 8 of the Children Act 1989 and the inherent jurisdiction were materially the same. The approach in NY applied to an inward return application.
3. Following Re J and NY, the court undertook a substantial but focused welfare inquiry. It considered the children’s wishes and feelings, their connections with England and Spain, nationality, culture and ethnicity, language and education, accommodation, the effect of change, harm suffered and anticipated, parental capacity, and the comparative ability of the courts to determine future arrangements.
4. The children’s opposition to return was genuine but had been substantially influenced by their mother’s entrenched hostility towards their father. Their views therefore received significant, but reduced, weight. The court found past emotional harm from the deterioration of the relationship with their father and likely continuing harm if they remained in Spain.
5. Return would cause distress and disruption, but those effects were manageable. Planning, return after the Spanish school year, maternal care, family support in England, education in the children’s first language and the father’s financial and practical assistance would mitigate the transition.
6. The court considered Spain to have an effective welfare jurisdiction and respected international comity. Nevertheless, England was the natural and most appropriate forum because the children had been habitually resident there before retention, the Spanish orders had been set aside, and proceedings in England were advanced.
7. The application for summary return was granted. The return was ordered to promote the children’s welfare, not to punish the mother or to apply Hague Convention principles by analogy. The parties were directed to agree an order reflecting the decision.