Ben Mansfield, Barrister, 36 Family
The Court of Appeal in the case of R & Y (Children), Re [2024] EWCA Civ 131 (28 February 2024) has allowed an appeal in a Non-Hague Convention case against a ‘summary’ return order. The originating proceedings involved serious allegations of domestic abuse. The mother remains in this jurisdiction with the two children and the father lives in the UAE, where the parties lived together.
CAFCASS had said that there needed to be a determination of abuse allegations before they could make recommendations as to long-term child arrangements, and the court listed the matter for a fact-finding hearing. A series of findings were made, touching on physical and psychological abuse, and a degree of financial control, although the most serious allegations were not proven, including allegations of sexual abuse against the mother.
Following an addendum CAFCASS report recommending return and a final hearing, the court made a return order. The mother appealed and the appeal was upheld.
Baker LJ gave the leading judgment, with which Andrews and Asplin LLJ agreed in full. Critical parts of Baroness Hale’s judgment in the leading case of Re J (A Child) (Child Returned Abroad: Convention Rights) [2005] UKHL 40, as cited by the trial judge, remain of key importance:-
“…in all non-Convention cases, the courts have consistently held that they must act in accordance with the welfare of the individual child. If they do decide to return the child, that is because it is in his best interests to do so, not because the welfare principle has been superseded by some other consideration” (Re J, §25)
“… the court does have 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” (Re J, §26)
” … the judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any 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” (Re J, §32)
Baker LJ noted that the judge described the decision as being one of whether or not to order ‘summary return’. At §66 the Court of Appeal confirmed in straightforward terms that:-
“An order for the summary return of a child, under the Hague Convention or the inherent jurisdiction, is a decision that a child who has been wrongfully removed to or retained in this country should be returned to the child’s place of habitual residence without a full investigation of the child’s welfare. What is envisaged is that any dispute about child arrangements will be resolved after the child’s return by the courts of that country.”
The Court of Appeal stated that the point at which the court could have ordered a ‘summary’ return passed when it decided to hold a separate fact-finding hearing, and, as Baroness Hale observed in Re: J, itself cited by Poole J in Re A and B (Children: Return Order: UAE) [2022] EWHC 2120 (Fam) and by the trial judge, in a case brought under the inherent jurisdiction: –
“the court does have 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,”
but that is not what had happened in this case, where what taken place had in fact amounted to, in the view of Baker LJ, a ‘full investigation of the merits’.
Baker LJ noted (at §75) that whilst on a strict interpretation of PD12J §1, the practice direction does not apply to inherent jurisdiction proceedings, on a wider interpretation of PD12J §2, the practice direction ‘plainly would apply to such proceedings, and it is difficult to conceive of a reason why it would not’. He referred to the case of Re: NY (A Child) [2019] UKSC 49 (my underlining):–
“The mother points out, however, that, by para 1, the Practice Direction applies only to proceedings under the relevant parts of the 1989 Act … Nevertheless, as in relation to the welfare check-list, a court which determines such an application is likely to find it helpful to consider the requirements of the Practice Direction; and if it is considering whether to make a summary order, it will initially examine whether, in order sufficiently to identify what the child’s welfare requires, it should, in the light of the Practice Direction, conduct an inquiry into the allegations and, if so, how extensive that inquiry should be.“
Fundamentally, the Court of Appeal found that the lower court had, in light of the steer at §35 – 37 of PD12J, given insufficient consideration to its own findings , and that the ‘harm’ element of the welfare checklist had been insufficiently dealt with, having regard to the fact that a full welfare investigation had been undertaken.
Also of key importance is the emphasis on the importance and applicability of PD12J at the welfare stage, Baker LJ observing at § 80:-
“Practice Direction 12J is often portrayed as breaking new ground. But it ought to be seen as reflecting best practice. Paragraph 36(1) is really an example of the fundamental principle that in reaching a decision in children’s cases the court must consider each piece of the evidence in the context of all the other evidence […]”
In summary, this Court of Appeal judgment clarifies that:-
- The Re: J approach remains, and covers the full spectrum of the approaches required from summary proceedings through to the full welfare investigation.
- PD12J can and should be applied to “inherent jurisdiction” cases and, rather than breaking new ground, it reflects best practice.
- The court’s conduct of a full welfare investigation should indeed be full, and it should not be confused with a summary procedure.
- Fundamentally, “inherent jurisdiction” Non-Convention return applications must be welfare-led.
However, some questions still remain: –
Will there be a greater tendency towards such a “full investigation” approach, in particular in relation to applications pertaining to Non-Convention countries in which the allegations would be difficult or impossible to litigate?
In “full investigation” cases, how is habitual residence factored in to the decision-making process?
11 March 2024
36 Family - International Family Law Blog 