FB v KS

In a non-Convention child-return case, the child’s welfare remains the paramount consideration. Summary return is not automatic, but may be ordered where, after an appropriately proportionate welfare inquiry, return serves the individual child’s best interests.

The court should consider the child’s connections with each country, the length of residence, the child’s and primary carer’s circumstances, the adequacy of arrangements abroad, and whether disputes about the child’s future can effectively be determined there. Allegations of domestic abuse require an assessment of whether fact-finding is necessary and proportionate. The court must avoid extrapolating relationship-specific abuse into an ongoing risk without sufficient evidence.

The applicant mother sought, under the inherent jurisdiction, the summary return of her 18-month-old daughter to the Philippines after the child remained in England with her father following a family holiday. The father resisted return, alleging that the mother had subjected him to domestic abuse and that returning the child would expose her to future harm. He also contended that his ability to pursue custody and relocation proceedings in the Philippines would be materially prejudiced.

The court heard limited oral evidence on disputed allegations of physical violence, considered expert evidence about Philippine law, and determined whether summary return was compatible with the child’s welfare.

1. The application succeeded. The court ordered H’s return to the Philippines, together with protective and contact-related undertakings and orders concerning video contact, information about H’s whereabouts, non-violence, criminal proceedings and future in-person contact.

2. The governing approach was welfare-based. The court applied the principles drawn from Re J (A Child) (Child Returned Abroad: Convention Rights) [2005] UKHL 40, Re NY (A Child) [2019] UKSC 49 and J v J (Return to Non-Hague Convention Country) [2021] EWHC 2412. There was no automatic summary-return rule and no extension of Hague Convention principles to a non-Convention country.

3. Following Re NY, the court considered whether the evidence was sufficiently current, what findings were required, the relevant welfare factors under section 1(3) of the Children Act 1989, the need for oral evidence and expert evidence, and whether the competing legal systems could effectively resolve the child’s future.

4. Applying Re A and B (Children: Summary Return: Non-Convention State) [2022] EWCA Civ 1664 and In re H-N; In re H; In re B-B; In re T; Practice Note [2022] 1 WLR 2681, the court held that a fact-finding hearing is not required in every case involving domestic-abuse allegations. Limited oral evidence was necessary and proportionate because the allegations were directly relevant to future risk and the written evidence did not provide a sufficient basis.

5. The court found serious domestic abuse within the parents’ relationship, including repeated physical assaults by the mother. However, the evidence linked the risk principally to the dysfunctional romantic relationship. It did not establish a sufficiently high ongoing risk of emotional harm to H outside that relationship.

6. The Philippine legal system was different but provided an effective jurisdiction to determine custody and relocation. The father could seek custody on the basis of compelling reasons, and domestic abuse allegations could be considered within the welfare assessment. The practical difficulties of enforcement and the differences between the systems were relevant but not determinative.

7. Overall, the welfare balance favoured return. H had spent nearly all her life in the Philippines, had stronger connections there, and would benefit from continued care by her mother and relationships with her Philippine family, subject to safeguards supporting her relationship with her father.