Re P (Inherent Jurisdiction Return: Return Order: Welfare Analysis)

When deciding whether to order a child’s return under the inherent jurisdiction, the court must treat the child’s welfare as paramount and conduct a global, holistic and multifaceted comparison of every realistic option. Each option must be assessed on its own merits. Where domestic abuse has occurred, the court must address the identified risks and ensure that the child’s and relevant parent’s physical and emotional safety is secured before, during and after contact. A return may nevertheless be ordered where stringent and enforceable safeguards sufficiently reduce those risks. The court must also undertake any necessary proportionality assessment under Article 8 of the ECHR, with the child’s rights prevailing in the balancing exercise.

The father sought the return to Nigeria of P, aged nearly seven, under the inherent jurisdiction. The mother opposed the application and had an unresolved asylum appeal before the First-tier Tribunal. Following an earlier fact-finding judgment, the court had found that the mother had removed P from Nigeria without the father’s consent and had made findings of controlling and abusive behaviour by the father, but had rejected the allegation that he threatened P with female genital mutilation.

The court heard updated evidence concerning P’s welfare, the mother’s mental health, Nigerian law and the practical arrangements proposed for a return. The central issue was whether P’s welfare was better served by returning to Nigeria with her mother, subject to protective conditions, or by remaining in the United Kingdom.

The application was allowed in principle. Mrs Justice Knowles concluded, on a very fine balance, that P should return to Nigeria, subject to the outcome of the mother’s asylum appeal and stringent protective conditions.

1. Welfare evaluation. The exercise was substantive rather than a summary return procedure. P’s welfare was paramount. The court applied the welfare checklist and parental-involvement presumption, and compared the two realistic options globally, holistically and on their own internal merits.
2. Domestic abuse and safety. The findings of controlling and abusive behaviour required application of paragraphs 35–37 of PD12J. The court considered the harm already suffered, the risk of further harm, the father’s limited insight, his proposed behavioural work, the parents’ physical separation, third-party handovers, non-molestation orders, financial safeguards and the mother’s control over P’s day-to-day care. Together, these measures enabled the court to conclude that the relevant safety conditions were met.
3. Comparative welfare analysis. Remaining in the United Kingdom preserved P’s links with her maternal family and familiar environment but left mother and child without secure immigration status, financial support or a realistic prospect of sustainable improvement. Return would involve substantial losses and uncertainty, but would secure legal status, promote P’s Nigerian identity and allow a meaningful relationship with her father while P remained in her mother’s care.
4. Proportionality and orders. The return represented a proportionate interference with the Article 8 rights of P and her mother. The order required, among other matters, a lives-with order in the mother’s favour, holiday and indirect contact, third-party handovers, non-molestation protection, withdrawal of complaints to Nigerian authorities, upfront financial provision, secured maintenance, behavioural-change work by the father, conversion into Nigerian Terms of Settlement and finalisation of the parents’ divorce. Further directions were deferred until the Tribunal’s decision.

The judgment followed an earlier fact-finding decision in the same proceedings, Re P (Inherent Jurisdiction Return: Allegations of Female Genital Mutilation and Domestic abuse: Fact Finding) [2022] EWHC 1722 (Fam). The present judgment was a first-instance welfare determination. The return order was made subject to the outcome of the mother’s pending appeal before the First-tier Tribunal.