PZ v TB

In a welfare decision concerning children wrongfully removed to another country, the ordinary expectation of return does not displace the court’s duty to determine what presently serves the children’s welfare. Children’s wishes may receive significant weight where they are mature and understand the situation, although they remain non-determinative. The court may consider the practical enforceability of a proposed return order, and its continuing welfare consequences, as part of the overall assessment. A return order may therefore be set aside where circumstances have materially changed and return would cause greater emotional harm than the disruption of remaining abroad. The court may make contact directions intended to preserve the children’s relationship with the absent parent.

The proceedings concerned two children who had lived in Libya with their paternal grandparents since 2020. Their mother sought their return to England and Wales and their care in Sheffield. A return order had previously been made, but its enforcement had been stayed. The court had already determined that England and Wales had jurisdiction and that the proceedings should not be stayed in favour of proceedings in Libya: [2022] EWHC 1073 (Fam).

The present hearing concerned the children’s welfare, including their wishes and feelings, educational and emotional needs, the practical consequences of return, the effect of the Libyan travel ban and the likely enforceability of any order. The central issue was whether the children should now be returned against their wishes.

1. Welfare decision. The court’s task was to determine the present welfare interests of the children. Although their removal and retention had occurred without the mother’s consent and would ordinarily create a clear expectation of return, the adult rights and wrongs did not determine the welfare outcome.
2. Children’s wishes and welfare factors. The children were of sufficient age and understanding for their wishes to receive significant weight, but those wishes were not determinative. They were settled in Libya, doing well educationally and supported by their paternal family. Return would cause substantial disruption, including interruption of one child’s IGCSE course, and likely emotional harm. The court also recognised the continuing harm arising from separation from both parents and the risk that remaining in Libya would restrict contact with the mother.
3. Enforceability. The court was entitled to consider the likely practical effect of a return order and its consequences for welfare. It was not required to disregard the evidence that an English order would probably not be enforced in Libya. The court would have reached the same welfare conclusion even without that evidence, but the lack of enforceability reinforced the conclusion.
4. Outcome. More than two years after removal, return was no longer in the children’s welfare interests and would cause greater emotional harm. The previous return order was set aside because of the circumstances then prevailing and the welfare decision, not because of procedural irregularity.
5. Contact. The father was directed to use his best endeavours to facilitate regular direct and indirect contact, including annual visits by the children to the United Kingdom or, if necessary, a third country, and to seek the lifting of the Libyan travel ban.

The judgment describes an earlier determination by Mr Justice Peel that England and Wales had jurisdiction and that the proceedings should not be stayed in favour of proceedings in Libya: [2022] EWHC 1073 (Fam). The present judgment determined the subsequent welfare hearing.