HH v UH

In a summary-return application concerning a non-Hague Convention country, the court must decide the individual child’s best interests. Summary return is not automatic and must not be used to penalise a parent or import Hague Convention concepts.

The court may consider the child’s connections with each country, the likely effect of a further move, the availability and effectiveness of a relocation jurisdiction abroad, the practical circumstances of the proposed return, and the effect on the primary carer. A return may be refused where it would create further instability, materially impair the primary carer’s ability to support the children, or leave important welfare questions subject to substantial legal uncertainty.

The father applied under section 8 of the Children Act 1989 for the summary return of four British children from England and Wales to Abu Dhabi, where they had lived for most of their lives. The mother resisted the application after leaving Abu Dhabi with the children following the father’s concealed second marriage.

The court heard evidence about the children’s welfare, the parents’ circumstances, and Abu Dhabi family law. The experts agreed that Abu Dhabi had a relocation jurisdiction based on the children’s best interests, but differed about its practical operation and acknowledged considerable uncertainty. The central issue was whether summary return was in the children’s best interests so that future welfare decisions could be determined in Abu Dhabi.

1. Application refused. The children had been habitually resident in Abu Dhabi and it was their home country, but summary return remained a welfare decision. The court was not required to penalise the mother or to apply Hague Convention concepts.
2. The court applied the welfare principles summarised in J v J (Return to Non-Hague Convention Country), drawing on Re L (Minors) (Wardship: Jurisdiction), Re J (A Child) (Child Returned Abroad: Convention Rights), and Re NY (A Child). The court considered the children’s connections with each country, the length of their residence, their wishes and needs, the likely effect of a further change, the parents’ ability to meet their needs, the foreign court’s ability to determine relocation, and the effect of return on the primary carer.
3. The children’s welfare was assessed under section 1(3) of the Children Act 1989, together with the presumption in section 1(2A) that parental involvement furthers welfare. The children were settled in England and Wales, supported by maternal relatives, and maintaining contact with the father. Their return would not restore their previous circumstances because the family home and possessions had been given up, the father had left his employment, and the proposed accommodation and financial arrangements lacked sufficient detail.
4. Although Abu Dhabi law provided, in theory, a best-interests relocation jurisdiction, its operation was untested and uncertain. That uncertainty alone would not necessarily have justified refusal, but it materially reinforced the welfare concerns arising from the proposed return. The mother’s likely distress was also relevant because she was the children’s primary carer and her distress was likely to affect the children.
5. Considering all the circumstances, the children’s welfare required refusal of summary return. Further welfare decisions were to be matters for the courts of England and Wales.