G and H (Children: Return to Ghana), Re

In an application for the return of children to a non-Convention country, the court must apply the welfare principle. Summary return is discretionary and is not an automatic response to an unauthorised removal. The court must focus on the individual children and assess all relevant circumstances, including their connections with each country, the length of their stay, their wishes and feelings, the effect on the primary carer, the availability of effective welfare adjudication in the foreign country, and the practical arrangements for maintaining family relationships.

The extent of any welfare inquiry, including investigation of domestic-abuse allegations, is also discretionary and must be necessary and proportionate. Return may properly be ordered where the foreign court is better placed to determine longer-term arrangements, even though return will cause disruption.

The father applied under the court’s inherent jurisdiction for the return of his two children, aged 13 and 7, to Ghana. The children, both Ghanaian nationals, had lived all their lives in Ghana and were habitually resident there when their mother took them to England in February 2023 and did not return them as agreed.

The mother opposed return, relying principally on the children’s settled life in England, her employment, the children’s wishes and feelings, and allegations of domestic abuse. The children became wards of court. A welfare report was obtained. The mother’s renewed application for a fact-finding hearing was refused. The central issue was whether return to Ghana, a non-Hague Convention country, was in the children’s best interests.

1. Welfare and summary return. The application was determined under the inherent jurisdiction by reference to the children’s best interests. The principles of the Hague Convention did not apply to Ghana. Summary return was not automatic, but the court retained power to order it without a full investigation where that was in the children’s welfare.
2. Scope of inquiry. The court had discretion over the extent of the welfare inquiry, including whether domestic-abuse allegations required findings. The allegations principally concerned events before separation, contained limited detail, and were of limited relevance to the return issue. They could be taken into account without specific findings. A separate fact-finding hearing would have caused disproportionate delay.
3. Relevant factors. The court assessed the children’s strong lifelong connections with Ghana, their fifteen months in England, their education and friendships, G’s firm wishes, H’s ambivalence, the effect of separation from their mother, the likely difficulty of maintaining face-to-face contact with their father in England, and the family’s access to the Ghanaian courts. The Ghanaian courts had previously made welfare-based child-arrangements orders and were well placed to determine longer-term arrangements, including relocation.
4. Best interests. Although return would disrupt the children’s education, override G’s wishes and might temporarily separate them from their mother, those disadvantages were outweighed by their stronger connections with Ghana, the restoration of regular contact with their father and grandparents, and the Ghanaian courts’ comparative ability to determine their welfare. The children should remain together.
5. Order. The father’s application was allowed. Return was directed after both children completed the current school year, expected to be in July 2024. Protective measures included undertakings by the father concerning airport attendance, removal of the children from their mother’s or maternal grandparents’ care, and withdrawal of his committal application.

The judgment was a first-instance determination under the court’s inherent jurisdiction. The children had been made wards of court, and an earlier application for a fact-finding hearing had been refused at a pre-trial review.