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J v J (Return to Non-Hague Convention Country) [2021] EWHC 2412 (Fam)

An application was brought by the father, who sought the summary return of his 5-year-old son D to India. The mother opposed the application.

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The parties were both born in the Republic of India. They married in 2007 and moved to the UK in 2008. In 2016, D was born in England. In 2018 the family returned to India. It was not disputed that the parties then became habitually resident in India, and the Indian Court had accepted jurisdiction on that basis.

The parties separated in April 2021. The mother alleged that the father had been economically, physically, and emotionally abusive, and coercive and controlling. The father alleged that the mother was mentally unstable, had been physically abusive towards D, and was turning D against the father and paternal family.

On 30 June 2021, the father instituted child welfare proceedings in India and sought custody and interim custody. Both parties instructed lawyers in India and a hearing was fixed for 7 July 2021, but the mother did not attend. On 5 July 2021, the mother had flown to England with D. They quarantined in a hotel for two weeks and then moved to temporary accommodation and were supported by the Local Authority. On 14 July 2021, proceedings under the inherent jurisdiction were issued in the Family Division by the father, and the application for summary return was heard on 23 August 2021.

The Judge considered expert evidence from Dr Anand. The expert advised that child welfare proceedings in India involve consideration of an equivalent welfare checklist. A relocation application in India is governed by the best interests of the child and can be considered within custody proceedings; the process may take around three years but this could be expedited. The mother could seek orders in India to protect her from domestic abuse, and would be entitled to legal aid irrespective of means.

A Child Assessment Report conducted by West Sussex County Council noted that D had picked up on the adult conflict, was closely attached to his mother who met his physical and emotional needs, and was missing his father. Contact between D and the father had been indirect and not without difficulties.

The Court considered the case law and particularly Re J (A Child) (Child Returned Abroad: Convention Rights) [2005] UKHL 40, and Re NY (A Child) [2019] UKSC 49. An application for summary return of a child to a non-Hague Convention country is determined by reference to the child's best interests and consideration of all aspects of the welfare checklist. Summary return is not the automatic reaction to the unauthorised removal of a child from his home country. The particular circumstances of the case and the welfare interests of the individual child must be considered. An important factor is the degree of connection of the child with each country. If there is an issue between the parents as to whether relocation is in the child's best interests, it is relevant to consider whether that issue is capable of being tried in the courts of the country to which the child is to be returned to. The court ought to consider what if any findings it should make to justify the summary order.

The Judge determined that it was in D's best interests to be returned to India forthwith and for his future to be determined by the Indian courts. D had a significant network of family and a good education in India, and his religion, culture, and ethnicity were deepest rooted there. The re-establishment of contact with the father would also likely be in D's best interests. In contrast, D's situation in England was unstable, with no permanent housing, financial security, or schooling, and limited family support. The mother's removal of D to England was found to be primarily prompted by her wish to avoid engaging in the family court proceedings in India. The allegations raised by both parties would be resolved in the Indian courts. The mother had the opportunity to present her case for relocation in that forum should she so wish, and could apply for interim or expedited relief in that regard. The father was required to give undertakings to lay in place protective measures for the mother and D's return, to mitigate any risk of harm arising from the alleged abuse.

Case summary by Kate Pearson, Barrister, St John's Chambers

For full case, please see BAILII