O (Summary Return: Non-Convention Country), Re

An application for summary return to a country outside the 1980 Hague Convention is determined solely by the child’s best interests. Convention concepts such as habitual residence and wrongful removal must not become jurisdictional requirements or create a presumption of return.

The court should assess, swiftly and realistically, the child’s connections with each country and identify the child’s home country in a common-sense way. Habitual residence may sometimes be relevant within that welfare assessment, but its weight depends on the facts. The welfare checklist may assist even where it does not apply directly.

Domestic abuse allegations require fact-finding only where necessary for the welfare decision. The court should consider their relevance, available evidence, the parties’ views, proportionality, resources and the harm caused by delay.

The mother appealed against an order of a deputy High Court judge requiring the summary return of her two young children to Nigeria, a country outside the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The children had been born in England, but the family had left England and the children had lived in Nigeria before the mother brought them back without the father’s knowledge.

The judge found that the children had become habitually resident and settled in Nigeria. She rejected the mother’s pursued allegations of domestic abuse and found that the mother’s stated refusal to accompany the children was tactical. Applying the welfare checklist, she concluded that return was in their best interests.

The appeal concerned whether the judge had wrongly treated habitual residence as a primary issue, whether that error undermined the welfare assessment, whether allegations of rape and sexual assault should have been tried, and whether negligent representation had caused procedural unfairness.

1. Appeal dismissed. An application under the inherent jurisdiction for summary return to a non-Convention country is governed simply by the children’s best interests. There is no warrant for importing the technical concepts, language or philosophy of the 1980 Hague Convention on the Civil Aspects of International Child Abduction. In particular, habitual residence is not a jurisdictional prerequisite and wrongful removal does not create a presumption or quasi-presumption of return.
2. The judge erred by giving habitual residence primary status and by relying on section 3 of the Family Law Act 1986. The Act did not make habitual residence material to the jurisdiction exercised in this case. The judge also erred in treating authority concerning article 5 of the 1996 Hague Convention as significant. That Convention did not apply.
3. The error did not invalidate the order. Depending on the facts, habitual residence may be one of several matters relevant to welfare because substantive welfare decisions are generally better made in the child’s native or home country. The required inquiry is a common-sense comparison of the child’s connections with each country. The judge’s factual findings established that Nigeria had become the children’s home country and informed a valid welfare assessment. She applied no Convention presumption and repeatedly based her conclusion on best interests.
4. The judge properly used the welfare checklist in section 1(3) of the Children Act 1989 as an analytical framework, although it was not formally mandatory. She considered the benefits and disadvantages of the children’s circumstances in both countries, the effects of change, their support and therapeutic needs, their relationships, and the likelihood that the mother would return. Her conclusion that the mother’s refusal was tactical was open to her.
5. Family Procedure Rules 2010 Practice Direction 12J does not strictly extend to the inherent jurisdiction, but in practice should apply without qualification where the same return order could have been sought under the Children Act 1989. It does not require every domestic abuse allegation to be tried. The judge properly considered necessity, relevance, the available evidence, the represented parties’ agreement, proportionality, resources and delay. She was entitled to respect the mother’s wish not to pursue the sexual allegations.
6. The former solicitors’ established negligence in failing to arrange representation for an earlier hearing did not cause trial unfairness. The mother’s extensive written evidence, internal inconsistencies and conflict with credible evidence supported the unchallenged credibility findings independently of any professional failing.
7. The stay of the operative return provisions was to be lifted. A new timetable was to provide, ideally, for the children’s return to Nigeria within 14 days of hand-down.

1. Court of Appeal (Civil Division): The mother’s appeal was dismissed and the stay of the summary return order was to be lifted: [2025] EWCA Civ 660.
2. High Court (Family Division): Ms Hannah Markham KC, sitting as a deputy High Court judge, ordered the children’s summary return to Nigeria on 21 February 2025. No citation for that substantive judgment is stated.