P & Anor v S & Anor

Where a child has been retained in another contracting state, proceedings under the Hague Convention 1980 will usually be the better course. However, the absence of Hague proceedings does not remove the domestic court’s jurisdiction to make or continue orders under the Children Act 1989, nor does it make that course an error of law. The decision remains fact-sensitive and within the trial judge’s discretion.

On an appeal under FPR 2010, r 30.12(3), the appellate court may intervene for an error of law, material failure to weigh evidence, a factual conclusion unavailable on the evidence, serious procedural unfairness, or an exercise of discretion outside the range of reasonable disagreement. Changed circumstances may justify suspending, rather than discharging, a return order to facilitate temporary sibling contact.

The appeals concerned an order made by HHJ Cole in the Worcester Family Court on 5 November 2024 directing P, aged 14, to return to England from Slovakia under the Children Act 1989. P had travelled to Slovakia with his mother and remained there after expressing a wish not to return. No application had been made under the Hague Convention 1980.

The mother and P challenged the domestic return order, arguing that Hague proceedings were the proper route and that the practical enforceability of the order had not been considered. The mother also sought permission for P’s sister, T, to travel to Slovakia during the Easter holiday. The central issues were whether the domestic return order was legally or procedurally defective, and whether subsequent circumstances justified varying or suspending it.

1. Appeals dismissed. Under FPR 2010, r 30.12(3), an appeal succeeds only where the decision below was wrong or unjust because of a serious procedural or other irregularity. That includes an error of law, a clear failure to give proper weight to a significant matter, an evidential conclusion which was not open to the judge, serious procedural unfairness, or an exercise of discretion outside the range of reasonable disagreement.
2. The court accepted the guidance in Re S (Abduction: Hague Convention or BIIa) [2018] EWCA Civ 1226 that Hague proceedings are generally the better course where a child has been abducted to or retained in a contracting state. That did not mean that making an order under the Children Act 1989 in the absence of Hague proceedings was an error of law. The judge had jurisdiction, as illustrated by Re D (A minor) (Child: Removal from Jurisdiction) [1992] 1 FLR 637 (CA).
3. HHJ Cole had been entitled to repeat the return order. No Hague application had been made, and he was not required to defer the domestic application indefinitely. He had considered P’s expressed wishes through counsel and was entitled to anticipate that the father would pursue enforcement or Hague proceedings. The order was within the broad ambit of his discretion.
4. The passage of time materially altered the practical value of the return order. The order was therefore suspended, but not discharged, to permit P to return briefly to England during the overlapping Easter holidays to see T and his mother. That arrangement was a neutral, without-prejudice practical measure and did not determine issues of acquiescence, settlement, relocation or welfare.
5. The proposed trip by T to Slovakia was refused in favour of P’s temporary return. The risk that T might not return outweighed the benefits of a longer visit, while sibling contact could still be achieved. The matter, including the mother’s relocation application, was left for urgent further consideration by HHJ Cole.

• High Court (Family Division): appeals against HHJ Cole’s order of 5 November 2024 dismissed. The return order was subsequently suspended, but not discharged, to facilitate P’s temporary visit to England.
• High Court (Family Division): permission to appeal had previously been granted in the same litigation in [2025] EWHC 468 (Fam).
• Family Court, Worcester: HHJ Cole made the order directing P’s return under the Children Act 1989.