Y and K (Children: Summary Return Application: Asylum), Re

A summary-return application under the inherent jurisdiction is governed exclusively by the child’s welfare. Return to the child’s former home country is not automatic, although it may often be in the child’s interests. The court must focus on the individual child and decide how extensive an inquiry is required by the circumstances.

Where domestic abuse is alleged, the court may proceed on the allegations without fact-finding if adjudication is unnecessary to determine welfare or risk. Proposed protective measures must be genuinely effective. The court must assess the child’s connection with each country, the practical ability of each legal system to determine future arrangements, the effect on the primary carer, and the child’s immediate needs. On the facts, return to Germany was refused.

The father sought the summary return of his two young children to Germany. He initially relied on the 1980 Hague Convention, but withdrew that application when his asserted custody rights became insecure. He pursued a return application under the inherent jurisdiction.

The mother had brought the children from Germany to England after alleging serious domestic abuse. She and the children had made asylum claims, but the mother’s claim was treated as inadmissible. Judicial review proceedings were pending. The central issue was whether, applying the children’s welfare as the paramount consideration, immediate return to Germany would serve their best interests.

1. Disposition. The father’s application for summary return under the inherent jurisdiction was dismissed. The court held that return to Germany was not in the children’s best interests at that time.
2. The governing approach was welfare-based. The specialist rules of the 1980 Hague Convention no longer applied. The court applied the principles in Re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40 and the structured considerations identified in Re NY (A Child) [2019] UKSC 49. The children’s individual circumstances, needs, connections with each country, the effect of change, the mother’s position as primary carer, and the ability of the competing courts to resolve future arrangements were material.
3. The court proceeded, by agreement, on the basis that the mother’s domestic-abuse allegations were likely to be true. Under PD12J, disputed allegations require adjudication only where that is relevant and necessary to determine welfare or risk. The court therefore assessed the proposed protective measures without a fact-finding hearing.
4. Protective measures had to be effective in practice. The proposed measures gave some reassurance, including undertakings concerning contact, removal, travel documents and protective orders. They did not remove the substantial concerns about prosecution, accommodation, financial support, the mother’s confidence in German protection, and the father’s reliability.
5. The children were exceptionally vulnerable and had experienced significant trauma. Their current situation in England was unsatisfactory but had acquired some stability. Return would expose them to renewed instability and would materially compromise the mother’s emotional condition and parenting capacity. The pending immigration and judicial-review proceedings did not determine the welfare outcome, but were relevant to case management and the practical context.