E v O

In an application for summary return to a non-Hague Convention country, the child’s welfare remains the paramount consideration. Summary return is available, but it is not an automatic response to an unauthorised removal. The court must assess the individual child’s best interests, including the child’s connections with each country, the circumstances of removal, the effect on the primary carer, relevant differences between legal systems, and whether the foreign court can determine the substantive welfare issues effectively.

Where return may effectively determine the child’s long-term upbringing and the evidence is insufficient to assess the parents’ respective abilities and the available options, the court may refuse summary return and direct substantive welfare proceedings in England.

The mother applied for the summary return of her nearly three-year-old daughter to China after the father removed the child clandestinely from the family home and brought her to England. The child had lived in China throughout her life and had been primarily cared for by her mother.

The court considered the competing consequences of returning the child for welfare proceedings in China or retaining her in England while substantive welfare proceedings took place. The central issue was which course was in the child’s best interests, having regard to the evidence concerning the Chinese courts’ ability to determine relocation and enforce cross-border contact.

1. Outcome. The application for a summary return order was dismissed. The child was to remain in England pending substantive welfare proceedings.
2. Under Re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, the welfare of the child is paramount in non-Hague Convention cases. The 1980 Hague Convention principles must not be extended to non-Convention countries as though they displaced the welfare principle.
3. The court has power to order immediate return without a full merits investigation. Summary return is not automatic following an unauthorised removal. The court may begin with the proposition that return to the child’s home country is likely to be better for disputes about the child’s future, but the weight of that proposition varies with the circumstances.
4. The assessment may include the child’s connections with each country, the time spent in each, whether the child was suddenly or clandestinely uprooted, relevant differences between the legal systems, the foreign court’s ability to determine the substantive welfare issues, and the effect on the primary carer. The court must also have regard to the welfare checklist in section 1(3) of the Children Act 1989.
5. Following the guidance in Re NY (A Child) [2019] UKSC 49, the court considered whether the available evidence permitted sufficient welfare findings, including findings about the parents’ abilities, the child’s relationships and the practical consequences of return. The evidence was insufficient for a decision with potentially long-term consequences.
6. The expert evidence that Chinese courts did not appear able to order relocation to England absent agreement, and could not effectively enforce cross-border contact, was of particular concern. Although the child was settled in England and remaining there caused detriment through separation from her mother, the court considered that the benefit of a full welfare assessment outweighed the disadvantages of an immediate return.
7. Directions were to be made for welfare proceedings, including consideration of a Cafcass report and further evidence. Arrangements for contact and contributions to the mother’s travelling expenses were also to be addressed.