DL v BJ

In a non-Convention child abduction case, summary return is governed by the child’s welfare, which remains paramount. Return is not automatic merely because a child was removed without consent. The court must focus on the individual child and conduct an inquiry proportionate to the issues, including the welfare checklist in section 1(3) of the Children Act 1989. Relevant considerations may include the child’s connections with each country, the effect of a return, the primary carer’s position, domestic-abuse risks, available protective measures, and whether the foreign court can determine long-term welfare and relocation issues. A return may be ordered where, on the evidence, it best serves the child’s welfare and safeguards can adequately address identified risks.

The father applied under the inherent jurisdiction for the summary return of the parties’ young child from England to Dubai. The child had lived in Dubai with both parents following an intended permanent relocation, but the mother brought him to England without the father’s consent. The parents had an acrimonious relationship involving mutual domestic abuse allegations, and the mother resisted return partly on welfare, immigration and protective-measures grounds.

The court considered updated evidence, a CAFCASS report, expert evidence on UAE law, immigration arrangements and proposed safeguards. The central questions were the child’s habitual residence, the extent of inquiry required in a non-Convention summary-return application, and whether return to the UAE was in the child’s welfare interests.

1. Summary return principles. The application was determined under the inherent jurisdiction and the paramount consideration was the child’s welfare, assessed by reference to the welfare checklist in section 1(3) of the Children Act 1989. Summary return to a non-Convention country is discretionary and is not an automatic response to unauthorised removal.
2. The court addressed the linked questions identified in Re NY (A Child) [2019] UKSC 49. The evidence was sufficiently current. Detailed fact-finding about the parents’ competing conduct was unnecessary because both accepted the child had been exposed to serious conflict and the court could assess the future risks and proposed safeguards. The court had sufficient evidence concerning welfare, living arrangements, oral evidence, CAFCASS involvement and UAE legal processes.
3. Habitual residence. Applying the principles discussed in A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre and Others Intervening) [2014] AC 1 and Re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105, the child’s habitual residence had changed from England to Dubai. The parents’ settled intention to relocate, surrender of the English tenancy, substantial integration in Dubai, visa arrangements, employment and nursery investigations established sufficient integration in a social and family environment there.
4. The UAE courts had a relocation jurisdiction applying best-interests principles. The evidence established that the mother and child could remain lawfully in the UAE, that the parents could litigate there on substantially equal terms, and that protective measures, including separate accommodation, financial support, medical insurance, a nanny and parenting-app communication, would substantially reduce the risk of renewed conflict.
5. Balancing the welfare checklist factors, return offered the child the realistic prospect of a direct relationship with both parents, while preserving the mother’s primary care and enabling the UAE courts to determine long-term welfare arrangements. The child’s welfare therefore required summary return to the UAE.
6. The child was ordered to be returned within 14 days, or at another time agreed in writing. The protective measures were to be incorporated into the order. Permission was granted to disclose the papers to UAE safeguarding agencies and courts, and the judgment and order were to be translated into Arabic at the parties’ joint expense.