Does it matter whether the returning country is a contracting State of The Hague Convention?
The recent case of J v J (Return to Non Hague Convention Country) 2021 EWHC 2412 demonstrates quite dramatically that in cases where a child has been taken from a non Hague Convention country to the United Kingdom, summary return can nevertheless be affected speedily depending on the circumstances of the case.
The facts of J v J are these. The parties were married in 2007 in India and moved to the United Kingdom in 2008. The child concerned was born in 2016, before the parties returned to India in 2018. In April 2021 the parties separated with the mother moving to live with her parents.
Both parties made allegations of domestic abuse against the other.
The father brought proceedings in India in June 2021, under the equivalent child arrangements provisions and the case was set down for a hearing on 7th July 2021. The mother failed to attend the hearing, claiming she was ill, but the court nevertheless made orders preventing her from leaving the jurisdiction with the child and also that she should surrender his passport. In fact, it transpired that the mother, on 5th July 2021, had travelled to the UK and after a period of quarantine because of the Covid-19 rules, moved into temporary accommodation provided by West Sussex County Council.
The father then commenced proceedings in the United Kingdom under the inherent jurisdiction of the Family Court on 14th July 2021, to secure the summary return of the child to India.
The case came to be decided on agreement by submissions on 23rd August 2021. Before the court was a Child and Family Assessment filed by West Sussex County Council and an expert report on the Indian law relating to child welfare proceedings advising that the laws involved similar considerations and any relocation application to the United Kingdom that the mother may seek to make, could be considered at the same time.
The law is clear that any application for summary return of a child to a non Hague Convention country will be made by reference to what is in the child’s best interest. The long standing dicta by Buckley LJ in Re L (Minors) (Wardship: Jurisdiction) 1974 1WLR 250 which was approved by Baroness Hale in Re J (A Child) ( Child Returned Abroad: Convention Rights)  UKSC 49 is worth repeating here:
“ To take a child from his native land, to remove him to another country where, maybe, his native tongue is not spoken, to divorce him from the social customs and contacts to which he has become accustomed, to interrupt his education in his native land and subject him to a foreign system of education, are all acts …which are likely to be psychologically disturbing to the child, particularly at a time when his family life is also disrupted. If a case is promptly brought to the attention of a court in this country, the judge may feel that it is in the best interest of the infant that these disturbing factors should be eliminated from his life as speedily as possible. A full investigation of the merits of the case in an English court may be compatible with achieving this…An order that the child should be returned forthwith to the country from which he has been removed in the expectation that any dispute about his custody will be satisfactorily resolved in the courts of that country may well be regarded as being in the interests of the child.”
In this case the court quoted the key quotations of Baroness Hale from Re J. They include these:
i) “any court which is determining any question with respect to the upbringing of a child has had a statutory duty to regard the welfare of the child as its paramount consideration”
ii) “There is no warrant either in statute or authority, for the principles of The Hague Convention to be extended to countries which are not parties to it.”
iii) “…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 other considerations.”
iv) “…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.”
v) “Summary return should not be the automatic reaction to any or every unauthorised taking or keeping a child from his home country. On the other hand, summary return may very well be in the best interests of the individual child.”
vi) “In a case where the choice lies between deciding the question here or deciding it in a foreign country, differences between the legal systems cannot be irrelevant. But their relevance will depend upon the facts of the individual case. 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.”
This case was “promptly brought” by the father and the court decided on the facts that the child should be summarily returned back to India, having read the Child and Family Assessment in substitution for a Section 7 report, the expert report on Indian law relating to child welfare proceedings, hearing submissions and with the father offering extensive protective measures by way of undertakings. The reasons given in this case included:
a) the child is most closely connected to India having lived there for the last three years and at the time he was only five years old;
b) his culture, religion and ethnicity were rooted deepest in India;
c) he was attending school in India, and
d) it was in his interests that contact with his father be re-established.
The proceedings in J v J commenced in the United Kingdom on 14th July 2021 and concluded on 23rd August 2021. The question has to be asked therefore: would they have concluded quicker if both countries were signatories of the Hague Convention? The answer is perhaps not, bearing in mind these proceedings were concluded in under six weeks, with an order for the child to be returned to India. So far as applications for summary return of a child is concerned, in my opinion it does not matter if the country to which the parent is seeking return to, is a signatory of the Hague Convention or not.