A Father v A Mother

In an application for the summary return of a child to a non-Hague country, the court must apply the child’s welfare as the paramount consideration. Summary return is discretionary and is not an automatic response to removal or retention. The court must decide what inquiry is necessary on the particular facts, including the child’s welfare checklist, the child’s connections with each country, available legal and practical arrangements, the effect on the primary carer, and any alleged domestic abuse. Procedural proportionality applies to any fact-finding exercise under PD12J. A return may be refused where it risks damaging parental co-operation and the child’s welfare, particularly where the child is very young and dependent on the primary carer.

The father applied under the inherent jurisdiction for the summary return of the parties’ eight-month-old child to a country which was not presently a Hague Convention country as between that state and England and Wales. The child had been born there but had spent longer in England than in any other place during her short life.

The parents, who were unmarried and of different nationalities, had separated after a difficult relationship. The mother opposed return, relying on alleged domestic abuse, her likely isolation and vulnerability abroad, and the practical circumstances of caring for the child. The father argued that practical difficulties could be resolved and that the child’s longer-term welfare should be determined abroad. The central issue was whether immediate summary return was in the child’s best interests.

1. Application refused. The court was not satisfied that summary return to the non-Hague country would promote the child’s welfare. The longer-term welfare question should be considered in England after a period of calm and improved parental co-operation.
2. Under the inherent jurisdiction, the welfare of the individual child remains paramount. The principles in Re J (A Child) (Child Returned Abroad: Convention Rights) [2005] UKHL 40 and Re NY (A Child) [2019] UKSC 49 do not create an automatic presumption for return. The court must focus on the child’s particular circumstances and determine whether a summary decision is appropriate.
3. The necessary welfare inquiry depends on the case. The court considered the evidence sufficiently up to date and clear for a limited summary determination, and applied the welfare checklist in section 1(3) of the Children Act 1989. It considered the child’s age, needs, background, connections with each country, the legal systems and practical arrangements, the effect of relocation, and the consequences for each parent.
4. Allegations of domestic abuse must be assessed in accordance with the relevance and proportionality requirements of PD12J. Following Re R & Y (Children) [2024] EWCA Civ 131, those requirements apply in inherent-jurisdiction cases. A separate fact-finding hearing was unnecessary because the evidence heard during the final determination was sufficient for the return application.
5. The child was very young, breast-fed and primarily attached to the mother. Although both parents could provide good care, the mother’s isolation, vulnerability and stress on return created a significant risk that the fragile improvement in parental co-operation would be damaged. That, in turn, created a risk of continuing harm to the child from parental conflict. The non-Hague country offered no clear procedural or jurisdictional advantage, while the father could remain substantially involved in England subject to immigration requirements.
6. The court declined to increase the father’s current contact immediately, but anticipated longer overnight stays if progress continued. The summary decision was not determinative of the longer-term welfare proceedings.

First-instance determination under the inherent jurisdiction. No appellate history was stated in the judgment.