DC v DC

In a non-Convention case, an application for the summary return of a child is determined solely by the child’s welfare. The court must not apply Hague Convention principles or require the applicant to overcome an equivalent threshold. Summary return may be ordered without a full welfare investigation, but it must be justified by the particular child’s best interests.

The assessment is fact-specific. Relevant considerations include the child’s connections with each country, the length and circumstances of residence, disruption caused by return, the position and welfare of the primary carer, available protective arrangements, the capacity of the foreign court and legal system, and any risk of separation or harm. Domestic abuse allegations may be addressed proportionately, including by taking the allegations at their highest where fact-finding would cause disproportionate delay.

The father applied under the inherent jurisdiction for the summary return of his three-and-a-half-year-old child to Thailand. The mother had left Thailand with the child without the father’s prior knowledge or consent in October 2023 and had since lived with the child in England.

Thailand was a signatory to the 1980 Hague Convention, but the United Kingdom had not accepted its accession. The application therefore fell to be determined under the welfare jurisdiction applicable to non-Convention cases. The father relied on the child’s original life and connections in Thailand. The mother relied on the child’s integration in England, her own circumstances and mental health, allegations of domestic abuse, and the risks and uncertainties of return.

The central issue was whether return to Thailand was in the child’s best interests.

1. Application dismissed. The court declined to make a summary return order because return to Thailand was contrary to the child’s welfare.
2. Thailand’s accession to the 1980 Hague Convention had not been accepted by the United Kingdom. The Convention therefore did not apply. The governing approach was the welfare principle identified in Re J (A Child) (Child Returned Abroad: Convention Rights): welfare remained paramount, and return could be ordered only because it was in the individual child’s best interests.
3. There was no equivalent to the Article 13(b) threshold applicable in Hague Convention proceedings. The court had to consider all the circumstances, including the direct and indirect effects of return on the child through the primary carer.
4. A fact-finding hearing on the mother’s domestic abuse allegations was unnecessary. Consistently with Re A and B (Children: Summary Return: Non-Convention State), the extent of inquiry depended on the facts and the summary nature of the proceedings. It was proportionate to take the mother’s case at its highest and assume the maximum alleged risk, without making findings, where a full hearing would cause substantial delay.
5. The child had lived in England for the majority of his life, was settled there, was cared for by the mother and was surrounded by her extended family. Return would involve substantial disruption, new accommodation and uncertainty. The mother’s position was precarious because of visa limitations, lack of public funding, possible proceedings affecting parental responsibility, and the risk of separation from the child. The comparative practical ability of the parents to navigate the two legal systems also favoured welfare proceedings in England.
6. The court accepted that Thailand had legal and administrative mechanisms capable of addressing welfare and domestic abuse, and that protective conditions could in principle be imposed. Those matters did not outweigh the cumulative welfare disadvantages of return.
7. The father remained entitled to apply for child arrangements orders in England. The parties were encouraged to establish contact and a longer-term arrangement with minimal further court intervention.

This was a first-instance decision. The judgment records that earlier children proceedings in the local Family Court had been adjourned and were later deemed dismissed.