N v E

In a non-Convention child-removal case, summary return is not automatic. The court must decide whether return is in the individual child’s best interests, applying the welfare principle as paramount and considering proportionality under article 8 of the ECHR.

The court should undertake an appropriately focused welfare inquiry. Relevant matters include the child’s connections with each country, the length and circumstances of residence, the availability of effective welfare proceedings, the child’s wishes and feelings, risks of harm, the primary carer’s position, and the practical powers available to the court. A return may be ordered where it is necessary to secure stability and enable welfare disputes to be determined in the natural and appropriate forum.

The mother applied under the inherent jurisdiction for the summary return of two children from Jordan to England. The father had removed them from England in February 2024, without the mother’s consent and in breach of a Prohibited Steps Order, and had subsequently taken them to Syria before returning to Jordan.

The children had lived principally in England and Wales and had previously been ordered to live with their mother following private law proceedings in the Swansea Family Court. Both parents were in Jordan, where related custody and travel proceedings were pending. The father sought an adjournment, a stay in favour of Jordan, and oral evidence from the mother. The central issues were whether the proceedings should be stayed and whether immediate or delayed return was in the children’s welfare interests.

1. The applications for an adjournment, a stay and oral evidence from the mother were refused. A fair hearing was possible within the available time, further delay was contrary to the children’s interests, and the proposed cross-examination was not necessary to determine the summary return application.

2. The court had jurisdiction because the children were habitually resident in England when the application was issued. The Swansea Family Court was exercising rights of custody when the children were removed in breach of the Prohibited Steps Order.

3. Applying In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40 and In re NY (A Child) [2019] UKSC 49, as summarised in J v J (Return to Non-Hague Convention Country) [2021] EWHC 2412, the court had to exercise a broad welfare discretion. The children’s welfare was paramount. Summary return was not an automatic response to unauthorised removal.

4. The welfare checklist in section 1(3) of the Children Act 1989 was relevant, although the application was made under the inherent jurisdiction. The court also had to consider whether the proposed order was necessary, justified and proportionate under article 8 of the ECHR.

5. Jordan was not shown to be clearly the more appropriate forum. England and Wales remained the natural and appropriate forum because of the prior detailed welfare proceedings, the children’s longstanding connections with England and Wales, judicial continuity, the availability of Cafcass and legal aid, and the absence of a final hearing date in Jordan. A stay would fail to meet the children’s pressing need for certainty, stability and an end to continuing litigation.

6. Return to England was in the children’s best interests. They were to be returned as soon as possible and no later than 31 March 2025, with twice-weekly indirect contact with the mother pending return. The court retained oversight through a further hearing.

The judgment describes earlier private law proceedings in the Swansea Family Court, concluded by HHJ Hobson on 10 August 2023. No appellate history is stated.