A recent case has highlighted factors at play when applications are made for summary return orders to non-Hague Convention countries.
In this case the father is a British national and the mother a Chinese national. Their daughter (I) aged almost three lived with them in China until the father (suspicious that the mother was having an affair) in what was described by the Court as a clandestine and deceitful way, took I from their home in China and flew to England. The mother had to go to some effort to find the father’s whereabouts and applied for an order that I be returned on a summary basis to China to live with her.
The argument the mother put forward included that I was totally settled in China, that the father had behaved wrongly in the way that he had removed I and that I’s relationship with her mother would continue to suffer if I remained in the UK.
The parties instructed an expert in Chinese law to advise on the legal differences in the approach of the two jurisdictions. It appeared from that advice that the Courts in China did not appear to make decisions allowing relocation back to the UK unless there was agreement. There were also concerns about the ability of the Chinese Courts to enforce cross border contact.
The Court helpfully set out the principles on which it should consider applications for summary return.
The first principle is that the welfare of the child is the paramount consideration. The Court acknowledged that whilst it did have the power to order the immediate return of the child to a foreign jurisdiction without conducing a full investigation of the merits, summary return should not be the automatic reaction.
There was reference to how each case needed to be taken on its own merits the factors including:-
- The degree of connection of the child with each country.
- The time spent in each country.
- The circumstances of their removal from the country to this jurisdiction.
- The differences between the legal systems in each country.
- Consideration of whether there is sufficient up to date evidence about the child’s circumstances.
- The application of the welfare checklist under Section 1(3) Children Act 1989.
The Court concluded that it was not in the best interests of I to be returned to China on a summary basis for welfare decisions to be taken there. The Court was concerned at the differences in the Chinese legal system that are outlined above. The concerns of the Court were that if a summary order was made it appeared that might be decisive as to the final decision and upon that basis the Court made directions for the case to proceed in this jurisdiction upon the basis that I remain here and enquiries and assessments were undertaken.
The significance of this case therefore is reminding us of the principles to be applied for summary return orders to non-Hague Convention countries and how focus needs to be given to matters including factors listed above, whether one is seeking to pursue an application for summary return or to oppose it.
If you face a similar situation and need support please contact our Family Law team on 0345 450 5558 or enquiries@stephens-scown.co.uk