D v T

On an application under the High Court’s inherent jurisdiction for the summary return of children to a non-Hague Convention country, the child’s welfare is paramount. The court must make a swift and unsentimental decision focused on the individual child, without importing the 1980 Hague Convention approach.

The court may begin with the broad proposition that return to the home country may serve the child’s interests, but must weigh that proposition against the welfare checklist in s.1(3) of the Children Act 1989. Where domestic abuse is alleged, the court must identify whether it is relevant to the welfare decision and decide what factual inquiry is necessary. Summary return should not be ordered where the proposed destination and care arrangements are materially uncertain.

The father applied for the summary return of four children, first to Sudan and ultimately to Dubai, under the High Court’s inherent jurisdiction. The mother opposed the application and accepted that she had removed the children from Sudan without the father’s consent, using forged documents.

The children had never lived in Dubai. The father was residing in Sudan, had no settled arrangements in Dubai, and supplied no reliable evidence concerning his ability to enter Dubai or alternative countries for contact. The mother made allegations of domestic abuse, including alleged abusive behaviour towards the children. The central issues were whether summary return to Dubai served the children’s welfare and whether the court had sufficient evidence to determine direct contact.

1. Summary return dismissed. The father’s application to return the children to Dubai under the inherent jurisdiction was dismissed. Dubai was a jurisdiction in which neither parent then resided, the children had never lived there, and the father’s ability to enter and care for them there was uncertain. The proposed arrangements were therefore inchoate and exposed the children to unacceptable uncertainty.
2. Under Re J (A Child) (Custody Rights: Jurisdiction) [2006] 1 AC 80, the child’s welfare is paramount. The court must make a swift and unsentimental decision focused on the individual child. It may start from the proposition that return to the home country may be beneficial, but must weigh that proposition against the welfare checklist in s.1(3) of the Children Act 1989, without importing the principles of the 1980 Hague Convention.
3. Re NY (A Child) [2020] AC 665 requires the court to consider whether an inquiry into the welfare checklist, disputed domestic abuse allegations, the currency and sufficiency of the evidence, oral evidence, Cafcass evidence and the comparative ability of the relevant jurisdictions is needed. It does not replace the efficient approach required by Re J.
4. The court was not able safely to determine direct contact. The allegations of serious domestic abuse had not been properly analysed for relevance, the children’s wishes and feelings had not been comprehensively obtained in relation to contact, and there was no adequate welfare or safeguarding analysis from Cafcass. In accordance with K v K [2022] EWCA Civ 468, the court had to identify the welfare issues, understand the allegations and decide whether factual determination was necessary.
5. The father’s contact application was treated as an application under s.8 of the Children Act 1989 and reallocated to the Family Court for directions. Further Cafcass evidence under s.7, evidence concerning immigration and the relevance of domestic abuse were required. Interim indirect contact was maintained, and the mother was required to keep the father informed and involve him in decision-making. The location order was discharged.

This was a first-instance decision. The judgment records earlier procedural hearings before Moor J, Judd J and Moor J, but no appeal from an earlier judgment.