MB v KB & Ors

When deciding whether to order the summary return of children to a non-Hague Convention country under the inherent jurisdiction, the child’s welfare is paramount. Return is not automatic after an unauthorised removal. The court must assess the individual circumstances, including the child’s connection with each country, the disruption caused by return, the ability of the foreign court to determine welfare issues, the effect on the primary carer, and the child’s wishes and feelings.

Where mature children express strong, clear and consistent opposition to return, and those views are supported by the evidence, they may receive great weight. A summary return order must be refused where it would be contrary to the welfare of the particular child.

The father applied under the inherent jurisdiction for the return of his two children, aged 15 and 12, from England and Wales to Qatar. The children had lived in Qatar for most of their lives but had moved to England with their mother without the father’s consent. They had settled into school and life in England and strongly opposed returning to Qatar or living with their father.

The application was resisted by the mother and the children, who were separately represented. The court considered the evidence concerning the children’s welfare, the parents’ relationship, alleged domestic abuse, the children’s views, and the ability of the Qatari courts to hear those views. The central issue was whether the children’s welfare required their immediate summary return.

1. The application for the return of the children to Qatar was dismissed. The court’s task was a welfare decision under the inherent jurisdiction. The children’s welfare was the paramount consideration, and the court did not import the principles governing the 1980 Hague Convention.

2. The court applied the guidance in Re J (A Child) (Custody Rights: Jurisdiction), including that summary return is not automatic, that the focus must remain on the individual child, and that it may ordinarily be better for disputes about the child’s future to be resolved in the home country. Relevant matters included the children’s connections with each country, the length of their residence, the disruption of return, differences between legal systems, and the effect on the primary carer.

3. Following Re NY (A Child), the court considered whether the evidence and inquiry were sufficient to identify what welfare required. This included consideration of the welfare checklist in section 1(3) of the Children Act 1989, the disputed domestic-abuse allegations, the need for up-to-date evidence and findings, the children’s representation, and the comparative ability of the jurisdictions to resolve the substantive issues swiftly.

4. The children had become settled in England, were attending school and had formed friendships there. A return would not restore the previous situation because the mother had surrendered the family home and employment in Qatar and might not be able to return within the period required for a summary return. There was consequently a real possibility that the children would initially live in Qatar with the father.

5. The court attached magnetic importance to the children’s wishes and feelings. They were intelligent and articulate, and their opposition to return was strong, clear and consistent. In light of the factual findings concerning the father’s past treatment of them and his conduct after the move, their views were understandable and were entitled to great weight. A summary return in the face of those views would be contrary to their welfare.

6. The order concerned only summary return and did not determine where the children should live in the long term. The final order was that the father’s application was dismissed.