Strand, London, WC2A 2LL
B e f o r e :
|- and -
|Re S (Wardship: Summary return: non-Convention country)
Charlotte Hartley (instructed by TM Fortis) for the Respondent, father (at the hearing)
Nicholas Anderson for the father (for judgment)
Hearing date: 27 January 2015
Crown Copyright ©
Mrs Justice Pauffley:
How S came to leave the UAE – the rival accounts
The father's account
What can be drawn from the available material?
How and why S left the UAE
• The welfare of the children is paramount. If a decision is made to return the child it must be because it is in his best interests to do so not because the welfare principle has been superseded by some other consideration.
• The specialist rules and concepts of the Hague Convention are not to be applied by analogy in a non Convention case.
• The court has the power, in accordance with the welfare principle, to order the immediate return of a child to a foreign jurisdiction without conducting a full investigation of the merits.
• 'Kidnapping' or abduction, in common with other forms of unilateral action in relation to children is to be strongly discouraged, but the discouragement must take the form of a "swift, realistic and unsentimental assessment of the best interests of the child, leading in proper cases to the return of the child to his or her own country, but not the sacrifice of the child's welfare to some other principle of law".
• There is no presumption that it is likely to accord with the child's welfare needs to be returned. The most one can say… is that the judge may find it convenient to start from the proposition that it is likely to be better for the child to return to his home country for disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that proposition will vary enormously from case to case. What may be best for him in the long run may be different from what may be best for him in the short run. It should not be assumed that allowing a child to remain here while his future is decided here inevitably means he will stay here for ever.
• One important variable is the degree of connection of the child with each country. Factors such as his nationality, where he has lived for most of his life, his race, ethnicity, religion, culture and education thus far will all come into this. Another closely related factor will be the length of time he has spent in each country.
• The extent to which it is relevant that the legal system of the other country is different from our own depends upon the facts of the particular case. It would be wrong to say that the future of every child who is within the jurisdiction of our courts should be decided according to a conception of child welfare which exactly corresponds to that which is current here. In a world which values difference, one culture is not necessarily inevitably to be preferred to another … We are not so arrogant as to think that we (in England and Wales) know best.
• If there is a genuine issue between the parents as to whether it is in the best interests of the child to live in this country or elsewhere, it must be relevant whether that issue is capable of being tried in the courts of the country to which he is to be returned. If those courts have no choice but to do as the father wishes… then our courts must ask themselves whether it will be in the interests of the child to enable that dispute to be heard. The absence of a relocation jurisdiction must do more than give a judge pause for thought… it may be a decisive factor… There are also bound to be many cases where the connection of the child and all the family with the other country is so strong that any difference between the legal systems here and there should carry little weight.
• These considerations should not stand in the way of a swift and unsentimental decision to return the child to his home country even if that country is very different from our own. But they may result in a decision that immediate return would not be appropriate, because the child's interests will be better served by allowing the dispute to be litigated here. Our concept of child welfare is quite capable of taking religious and cultural factors into account in deciding how a child should be brought up.
Additional submissions on behalf of the father