T v V & Anor

In a non-Convention child-return case, summary return is not automatic. The court must determine whether return is in the individual child’s best interests, applying the welfare principle and the checklist in section 1(3) of the Children Act 1989. Hague Convention concepts must not be applied by analogy.

Where forum is disputed, the applicant must show that England is not the natural or appropriate forum and that the alternative forum is clearly more appropriate. The court assesses the parties’ and children’s real and substantial connections, including welfare facilities, representation, evidence, delay and the progress of proceedings. Welfare is important, but not paramount, in the forum analysis.

A Gillick-competent child’s wishes should normally be given effect where they are neither objectively foolish nor unreasonable and accord with welfare.

The mother travelled from England to Iran with the two children, who were British-Iranian citizens born and brought up in England. The children were prevented from leaving Iran, while the mother returned to England. Proceedings were later issued in England for their return.

The father disputed the appropriateness of the English forum and opposed summary return. The children had not been attending school regularly in Iran, were said to be isolated, and expressed clear wishes to return to England. The court also had to determine the location and control of their passports and the practical steps required for return.

The central issues were whether England and Wales was the appropriate forum, whether summary return was in the children’s welfare interests, and what passport and travel-document directions should be made.

1. Forum. Applying the principles in Re K (A Child) [2019] EWHC 466 (Fam), the father had not shown that England was inappropriate or that Iran was clearly the more appropriate forum. England was the children’s home jurisdiction. Their upbringing, education and social history were principally located there. The parties could communicate and obtain effective representation in England, and the proceedings were already underway. There was no issue estoppel arising from the withdrawn Iranian proceedings. The English court could effectively hear the children’s wishes and welfare interests.
2. Non-Convention return. Iran was not a Hague Convention state. Under Re J (A Child) [2005] UKHL 40, the court had to apply the welfare principle. Summary return was a discretionary welfare order, not an automatic response to an unauthorised removal or retention. Hague Convention concepts were not to be applied by analogy. The court therefore undertook a focused but sufficient welfare enquiry, informed by Re NY (A Child) [2019] UKSC 49 and Re N (A Child) [2020] EWFC 35.
3. The welfare checklist in section 1(3) of the Children Act 1989 was applied. The children’s wishes, emotional and educational needs, cultural connections, isolation in Iran, risk of harm, and the effect of continued separation from their home environment were significant. A full welfare determination was unnecessary for the summary-return decision.
4. W was Gillick competent. Applying AS v CPW [2020] EWHC 1238 (Fam), his clear and mature wishes, which were neither foolish nor unreasonable and accorded with his welfare, should be given effect. X’s wishes were also clear and consistent with her welfare. The siblings should not be separated.
5. It was in both children’s best interests to return to England while their longer-term future was determined. The alleged welfare risks did not justify retaining them in Iran. The court ordered their summary return. The father was directed to take all necessary steps, including executing notarised permissions and providing passports or obtaining emergency travel documentation, to secure their return.