A v B & Anor

In highly unusual circumstances, the court may permit an abducted child to return temporarily to the state of habitual residence before determination of a Hague return application. The power under section 5 of the Child Abduction and Custody Act 1985 is expressed broadly and may include an interim return direction where necessary to secure the child’s welfare. The court should not make such an order routinely, because the return may affect jurisdiction and the practical conduct of the proceedings. An interim return may be appropriate where the child’s immediate welfare needs can be met only in the state of habitual residence, and those needs substantially outweigh the risks associated with delay or the possibility of a later jurisdictional change. The court may also release a left-behind parent from a non-return undertaking where the parent retains parental responsibility and appropriate protective undertakings are given.

The father applied under the Child Abduction and Custody Act 1985 for the return of his autistic son, C, to Ireland. C had been habitually resident there and had been brought to Bristol by the mother for a holiday but not returned. Following serious concerns about the mother’s mental health and C’s safety, the local authority intervened and C came into the father’s care.

The father and C were living in temporary hotel accommodation in Bristol without access to C’s specialist education and support services in Ireland. The mother relied on the Convention defences of grave risk and child objections, but had not yet filed evidence and required intermediary support. The central issue was whether the father should be released from an undertaking not to remove C from England and Wales, or whether the court could make an interim return order under section 5 pending the final hearing.

1. Release from undertaking. The father retained parental rights and responsibilities notwithstanding the wrongful retention, the commencement of proceedings, and the earlier undertaking. In the unusual circumstances, and absent the undertaking, returning C to Ireland would have been a lawful exercise of parental responsibility. The father was released from the undertaking, subject to undertakings to return C if the return application failed and not to commence welfare proceedings in Ireland pending resolution of the English proceedings. C’s passport was to be returned.
2. Interim injunction principles. The question was approached on the American Cyanamid basis, excluding damages as a relevant consideration. The mother did not have a seriously arguable case under article 13(b), since that defence concerned intolerability for C rather than hardship to the mother. The evidence showed that C’s specialist support was available in Ireland but not realistically available in England during the relevant period. Any possible objections by C would attract limited weight in light of his disabilities and the countervailing welfare evidence.
3. Balance of convenience. Even if the mother had a seriously arguable case, the balance favoured return. The immediate and prospective harm from loss of specialist education, unsuitable accommodation, and prolonged absence from C’s established support structure outweighed the theoretical risk that the father might breach his undertakings or that the Irish courts might assume primary jurisdiction.
4. Section 5 power. The court held, alternatively, that section 5 of the Child Abduction and Custody Act 1985 was wide enough to permit an interim return order. Part I of the Act qualified the Convention provisions, the statutory language was deliberately broad, and an interim return was consistent with the Convention’s objective of preventing further harm. Such relief should remain highly unusual and should be ordered only where necessary for the child’s welfare.
5. A final summary return order was not made because the mother’s inability to file evidence was linked to her mental health difficulties and procedural fairness required an opportunity to present her case. Directions were given for intermediary support, expert evidence, further evidence and a subsequent hearing.