S v D & Anor.

On an application under the inherent jurisdiction for the return of a child from a non-Hague Convention country, the child’s welfare is paramount. The court must apply the welfare checklist and bear in mind the general benefit of decisions being made in the child’s state of habitual residence.

A mature child’s wishes and feelings may carry very considerable weight, particularly where the child is approaching adulthood. The court must assess whether those wishes are authentic, while recognising possible parental influence. A return order should be refused where the harm caused by disrupting the child’s settled life and welfare would outweigh the benefits of restoring relationships. The court may decide the issue despite incomplete evidence or pending foreign proceedings if the material before it is sufficient.

The proceedings concerned a fourteen-year-old child who had been taken by his mother from England to a non-Hague Convention country and remained there. Several return orders had been made under the inherent jurisdiction. The child applied to discharge them.

The mother also sought Domestic Abuse Protection Orders for herself and the child, alleging a history of domestic abuse by the father. She additionally applied to enforce a financial order made in November 2014. The court had to determine whether the return orders should remain in force, whether the domestic abuse allegations could be reopened, and what further steps should be taken concerning contact and financial enforcement.

1. Return orders. The application to discharge the return orders was granted. Country X was not a Hague Convention country, so the court applied the welfare test under the inherent jurisdiction. The child’s welfare was paramount, the welfare checklist applied, and the principles identified in Re NY were relevant.

2. The child was mature, intelligent and conscientious and would be fifteen within months. His wishes and feelings therefore deserved great respect. Although the mother had influenced him, his views were nuanced and authentic. He was settled and happy in Country X, had obtained respite from the parental conflict, and valued the life, education, activities and cultural connection available there.

3. The court balanced the considerable harm caused by the loss of the child’s day-to-day relationship with his father and wider paternal family against the likely harm of forcing him to return. The latter would disrupt his settled life, damage his happiness and mental health, and might itself damage his relationship with his father. That harm outweighed the advantages of immediate return.

4. Domestic abuse application. The mother was not permitted to reopen allegations which had already been considered in earlier proceedings. The court rejected her submission that there had been no proper overall assessment under Re H-N and Others (Children)(Domestic Abuse: Finding of Fact Hearings). The proposed orders were also unnecessary and disproportionate and risked generating further litigation.

5. The court considered that it had sufficient evidence to decide the return application despite incomplete information about Country X and pending proceedings there. The financial enforcement application was adjourned. A child-arrangements application was deemed to have been made on the father’s behalf and adjourned for consideration of contact, subject to jurisdictional issues. The judgment and the earlier 2021 judgment were directed to be disclosed in the proceedings in Country X.