AA and BB (Children: Return Order: Dubai), Re

In an application for the summary return of children to a non-Hague Convention state, the governing consideration is the welfare of each individual child. Summary return is discretionary and must not be automatic following an unauthorised retention.

The court must assess the children’s circumstances as they are at the date of decision. Relevant matters include their connections with each country, the effect of further disruption, the welfare and practical circumstances of the primary carer, the availability of effective welfare and relocation proceedings in the foreign jurisdiction, and any material differences between the legal systems. A return should be refused where the children would face instability, harmful parental dependency, and an ineffective opportunity for their longer-term welfare to be determined.

The children, aged 11 and nearly eight, had lived and been educated in Dubai with both parents following their divorce. Their mother retained them in England during an agreed holiday in February 2024. They thereafter settled into English family and school life.

The father applied under the inherent jurisdiction for their summary return to Dubai. The mother opposed the application, relying on her lack of immigration status, financial dependence on the father, mental-health vulnerability, the uncertainty of her legal position in Dubai, and the children’s wishes and circumstances. The central issue was whether summary return to Dubai was in the best interests of each child, so that longer-term welfare decisions could be made there.

1. Application refused. The children’s welfare was the paramount consideration under section 1(1) of the Children Act 1989. The court was required to consider the welfare checklist in section 1(3), but no finding of fact on the parties’ allegations of coercion and control was necessary.
2. Habitual residence at the date of the return application was not a necessary issue. The court had jurisdiction to make a summary return order, and the decisive question was the children’s best interests as they were at the date of decision.
3. The children had significant connections with both Dubai and England. Their connections with England had strengthened during the year since retention. They were settled in English schooling and family life, while return to Dubai would involve a further change of home, family arrangements, schooling and parental relationships.
4. The mother’s return would be marked by financial and practical dependence on the father. The father had not complied fully with the registered Divorce Agreement and sought materially less favourable financial and child-arrangement terms. His proposed support did not provide a sufficiently stable landing and created a risk that his financial power would increase his control over the family.
5. The expert evidence showed that the mother could apply to relocate the children from Dubai, but the father’s veto as guardian would carry considerable weight and would ordinarily be overridden only exceptionally. The Dubai court would take account of the children’s best interests only in a limited way. The mother’s financial dependence and the cost of legal representation meant that she was unlikely to have effective access to that jurisdiction.
6. The children’s recent wishes to remain in England were sincere and had to be considered in light of their age and understanding. A return would cause further disruption and expose them to heightened parental conflict and possible deterioration in their mother’s mental health. Their continued residence in England would restrict direct contact with the father, but visits and indirect contact could continue.
7. Accordingly, it was not in the children’s best interests to return to Dubai. The prohibited steps order and port alert were continued for three months or further order. No long-term welfare determination was made.