E, Z, D, V (Inherent Jurisdiction: Refusal of Return Order), Re

In a non-Convention child-abduction case, the court’s paramount consideration is the welfare of each child. The Hague Convention principles must not be applied by analogy. The court may order summary return under the inherent jurisdiction without a full merits investigation, but any starting assumption that return to the child’s home country is preferable is only a factor in the welfare evaluation.

The court must consider the individual circumstances of each child, including the welfare checklist in section 1(3) of the Children Act 1989, the child’s home country, wishes and feelings, relationships, stability, risks of harm, and the adequacy of protective measures. Where return would cause significant disruption, separation from a primary carer or sibling group, or expose the children to unmanaged risks, the welfare case against summary return may be established.

The father applied under the inherent jurisdiction of the High Court for the summary return of four children to Uganda. The children had lived in Uganda until November 2022, when their mother brought them to England without the father’s consent, contrary to a Ugandan consent judgment providing for shared custody.

Uganda was not a party to the Hague Convention. The mother opposed return and alleged domestic abuse and risks to herself and the children. The youngest child’s biological father was joined as an intervenor and also opposed return. The central issue was whether, applying the welfare principle, the children should remain in England or return to Uganda for future disputes to be determined there.

1. Application dismissed. The court declined to order the summary return of any of the four children to Uganda under the inherent jurisdiction.
2. Following Re J (A Child) (Custody Rights: Jurisdiction) [2006] 1 AC 80, welfare was the paramount consideration. The Hague Convention’s specialist rules and concepts could not be applied by analogy. The court could make a summary return order without a full merits investigation, but return to the child’s home country was only a starting proposition and was not determinative.
3. Uganda was the children’s home country when they were removed. Their nationality, upbringing, education, family connections and cultural integration supported that conclusion. However, habitual residence was not central to the application. After seventeen months in England, the children had become integrated into English family, educational and social life. The court had to weigh both positions.
4. The court considered the first six welfare factors in section 1(3) of the Children Act 1989, following the guidance in In the Matter of NY (A Child) [2019] UKSC 49. The three older children’s wishes to remain in England were genuine, clearly expressed and grounded in their shared experience of parental conflict and the difficulties of the Ugandan care arrangements. Their wishes carried weight, although they were not determinative.
5. Return would risk substantial disruption to the children’s established home, education and sibling group. It could separate them from their mother, their primary carer, and could separate the youngest child from her biological father. The court accepted that the children should remain together and that regular contact with the father should continue, including by video.
6. The alleged abuse was not fact-found, but the allegations and the mother’s fear were relevant welfare risks. The father’s proposed protective measures did not sufficiently ameliorate the risks, including the possible effect of publicity, prosecution, coercive control and impairment of the mother’s ability to care for the children.
7. Balancing all factors for each child individually and collectively, the welfare case against summary return was established. The children should remain in England as a single sibling group.