Father v Mother

In an application for summary return of children to a non-Hague Convention country, the decisive consideration is the welfare of each child. Return is not automatic merely because removal was unauthorised, although it may be ordered without a full merits determination where that course best serves the children’s interests. The court must assess the individual circumstances, including the children’s connections with each country, the likely effect of a change, family relationships, education, safety, the position of the primary carer and the availability of welfare proceedings abroad. A fact-finding hearing on disputed domestic abuse allegations is not invariably required. A custody order under Nigerian law did not, on the evidence, authorise unilateral permanent relocation without further permission.

The father sought the summary return of two children to Nigeria, where the family had lived and where their older sibling remained. The mother opposed the application, relying on a Nigerian custody order, allegations of domestic abuse, the children’s preference to remain in England, her health and the absence of secure immigration status. She also sought an adjournment and a Hadkinson order.

Nigeria was not a Hague Convention state. The court had to determine whether the children had been lawfully relocated and, if not, whether summary return was in their best interests, having regard to the welfare checklist and ongoing Nigerian proceedings.

1. Unlawful removal. The Nigerian custody order awarded custody but did not terminate the father’s parental responsibility or authorise unilateral permanent removal of the children from Nigeria. Permission or variation should have been sought from the Nigerian court.
2. Applicable approach. The court applied the welfare principle to the individual children. Summary return was not automatic, but could be ordered without a full investigation of the merits where return was in their best interests and welfare issues could be determined more appropriately in Nigeria.
3. Domestic abuse allegations. A separate fact-finding hearing was unnecessary. The available evidence permitted a fair summary welfare assessment. The allegations were weighed, but the evidence did not establish that return would expose the children or mother to an unacceptable risk.
4. Welfare and outcome. The children’s strong Nigerian connections, separation from their father and sibling, uncertain immigration status in England, inadequate arrangements and ongoing Nigerian proceedings outweighed their preference to remain in England. Return was in the best interests of both children. The father was required to provide assurances, fund flights and education, and initiate federal protective proceedings. The children were ordered to return to Nigeria. The court declined to make orders concerning the older sibling or future living arrangements, which remained matters for consent or the Nigerian proceedings.