The High Court was faced with a summary return order (SRO) for a child to a country which is not signatory of the 1980 Hague Convention.
Background:
The father is a British National and the mother is a Chinese National who met about 15 years ago in China and were married in 2020. Their daughter was born in 2022. After she was born the relationship between the parties became strained. The father changed jobs and the family moved away from the major city where they had been living. The mother remained in her previous job which meant she faced a very lengthy commute.
In 2024, the father became suspicious that the mother was having an affair and when the mother was working, he removed the daughter clandestinely and flew with her back to England. The car rental company tracked the car to the airport and the mother discovered what had happened.
The mother flew over to England to see the daughter but could only gain contact in the presence of the father and did not know the name of the nursery she was attending.
The mother started proceedings by seeking a location order which was granted on the 7th November 2024. The mother applied for the child to be summarily returned to China.
Decision:
The Court started by noting that the leading authority on summary return orders to a non-Hague Convention country is Re J (A Child)(Custody Rights: Jurisdiction) [2005]. The first principle is that the “welfare of the child is the paramount consideration and that there is no warrant for the principles of the 1980 Hague Convention to be extended to countries which are not parties to it.” The courts must act in accordance with the welfare of the individual child.
The Judge noted that “The Court does have the power, in accordance with the welfare principle, to order the immediate return of the child to a foreign jurisdiction without conducting a full investigation of the merits. Summary return should not be the automatic reaction to any and every unauthorised taking or keeping of a child from his home country.” The focus is, therefore, on the individual child in the particular circumstances.
The Court also listed other factors to be taken into consideration such as “the degree of connection of the child with each country (e.g., nationality, where the child has lived, language, race, ethnicity, religion, culture, education), the time spent in each country and whether he has been suddenly or clandestinely uprooted.”
The Judge also pointed out that the differences between the legal systems are relevant. Based on a single joint expert report on Chinese Law, the Court ruled that it was not in the child's best interests to be returned to China on a summary basis for welfare decisions to be taken there.
The Judge acknowledged the financial toll on the mother but was “particularly concerned about the expert evidence that the courts in China do not appear to make decisions allowing relocation back to this country in the absence of agreement, and also as to their ability to enforce cross-border contact.” The Judge also noted that the father’s behaviour “may indicate an inability to put the child's emotional needs before his own.”
Implications:
This case highlights the importance placed on the welfare of the child by courts, even in non-Hague Convention abductions. The Court will have to assess various factors such as the degree of connection of the child with each country (nationality, where he or she has lived, language, race, ethnicity, religion, culture, education), the time spent in each country, and whether he or she has been suddenly or clandestinely uprooted. It will also assess the differences in the legal system and whether the child’s long-term welfare will be addressed.
In this case, the expert evidence raising concern about laws and procedures in China in cross-border child custody cases persuaded the Judge that the case was best heard in England.
