NG v CJ

In a non-Convention child-return application, the child’s welfare remains the paramount consideration. Summary return is not automatic, but the court may order immediate return without a full welfare investigation where the available evidence permits a sufficiently reliable welfare assessment.

The court should consider the child’s connections with each country, the effect of change, the ability of each parent to meet the child’s needs, the preservation of meaningful relationships with both parents, and the capacity of the foreign courts to determine future welfare issues. A compelling factor may be that return is the only realistic means of preserving a meaningful relationship with the child’s primary carer.

The mother applied under the inherent jurisdiction for the return of her three-year-old son to Pakistan. The child had been taken to England by his father in July 2023 and had remained living with him in England. The father opposed return, relying on the child’s welfare, the mother’s alleged consent, concerns about the child being taken to Waziristan, and the advantages of life in England.

The court considered evidence from both parents and a CAFCASS officer. It found that the child had been taken to England without the mother’s permission, that the mother was unlikely to be able to travel to England, and that the father was unlikely to promote contact. The central issue was whether the child’s welfare required summary return to Pakistan.

1. Application granted. The child was ordered to return to Pakistan to the care of his mother, where future welfare decisions could be made by the Pakistani courts.
2. Applying Re J (Child Returned Abroad: Convention Rights) (2006) UKHL 40, the court held that the welfare principle governed the application. The Hague Convention principles did not apply. Summary return was a welfare decision, not a punishment for parental conduct, and was not an automatic response to an unauthorised removal.
3. The court applied the linked questions identified in Re NY (A Child) v Reunite International and others [2019] UKSC 49. It considered whether the evidence was current and sufficient, what findings were required, the extent of the welfare and domestic-abuse inquiries, the proposed living arrangements, the need for oral evidence and a CAFCASS report, and the ability of the Pakistani courts to determine future issues.
4. The welfare checklist in section 1(3) of the Children Act 1989 was applied. The child was too young to express meaningful wishes. Although settled in England and well cared for by his father, he had strong Pakistani, familial, cultural and religious connections. The father’s hostility made it unlikely that he would promote a meaningful relationship with the mother.
5. The decisive consideration was that the child could realistically maintain a meaningful relationship with both parents only if returned to Pakistan. The court rejected the asserted risk of removal to Waziristan and found no established inadequacy in the mother’s proposed care.
6. The strict terms of the UK-Pakistan Judicial Protocol on Children Matters were not engaged, but the decision was consistent with its spirit.

1. High Court (Family Division): on 16 October 2023 Moor J made the child a ward of court. On 23 October 2023 Ms Nagheena Khalique KC, sitting as a Deputy Judge of the High Court, directed a final hearing. The application was adjourned for further evidence, including a CAFCASS report.
2. High Court (Family Division): the application was heard by Mr Jonathan Glasson KC sitting as a Deputy Judge of the High Court, who ordered the child’s return to Pakistan.