Child’s Best Interests Paramount in Non-Convention Summary Return: Re O [2025] EWCA Civ 660

Introduction

This landmark appeal concerned the mother’s challenge to an order for the summary return of her two young children, D (five) and A (four), from England & Wales to Nigeria—a non-Convention country under the Hague Convention. The father had applied under the High Court’s inherent jurisdiction for their prompt return, alleging the children were habitually resident in Nigeria and were removed without his consent. The mother resisted, raising serious allegations of domestic abuse and seeking to demonstrate that England was the children’s home country. Deputy High Court Judge Markham KC ordered their return. On appeal, the Court of Appeal (Stuart-Smith LJ, Peter Jackson LJ) was asked to review jurisdictional issues, habitual residence analysis, the weight to be given to the mother’s abuse allegations, and the adequacy of the welfare evaluation itself.

Summary of the Judgment

The Court of Appeal dismissed the mother’s appeal. It reaffirmed that an application for summary return to a non-Convention State must be determined by a swift, realistic, welfare-based exercise under the court’s inherent jurisdiction (Re J [2005] UKHL 40; Re NY [2019] UKSC 49). While a judge may take into account the “degree of connection” with each country (akin to home country), there is no warrant to import the technical Hague Convention concepts of habitual residence or wrongful removal. The Court found that, on the facts, the children had indeed settled in Nigeria by March 2024 and that their return was in their best interests. It also held that the trial judge had properly exercised her discretion under FPR 2010 PD12J when she chose not to fact-find the mother’s unpursued rape and sexual-abuse allegations, and that the mother’s solicitors’ earlier negligence had not rendered the proceedings unfair.

Analysis

Precedents Cited

Re J (A Child) [2005] UKHL 40: Established that non-Convention summary returns must be decided solely by reference to the child’s best interests, without importing Hague Convention technicalities.
Re NY [2019] UKSC 49: Endorsed Baroness Hale’s approach in Re J and observed that, in some cases, an inquiry into habitual residence (as a factor in home-country analysis) may be needed, but not for jurisdictional purposes.
Re A and B (Children) (Summary Return: Non-Convention State) [2022] EWCA Civ 1664: Confirmed that non-Convention summary returns and Hague Convention returns are distinct inquiries; emphasised a welfare-first approach.
Re H-N [2021] EWCA Civ 448 & K v K [2022] EWCA Civ 468: Restated the strict criteria under PD12J FPR 2010 for deciding whether to hold fact-finding hearings on abuse allegations.
Re L (Minors) (Wardship: Jurisdiction) [1974] 1 WLR 250: Noted courts prefer welfare determinations in the child’s native country, a principle influencing considerations of connection.
Re R (Minors) (Wardship: Jurisdiction) (1981) 2 FLR 416: Ormrod LJ’s guidance for a “swift, realistic and unsentimental” welfare assessment in summary return cases.

Legal Reasoning

1. Jurisdiction and Inherent Jurisdiction
The father’s application was brought under the court’s inherent jurisdiction; no Hague Convention applied. The Court of Appeal confirmed that jurisdiction arises from the children’s presence in England and Wales and the court’s power to make prompt welfare orders for their protection (Re NY at [29]).

2. Habitual Residence vs. Home Country
The trial judge overtly framed her inquiry as one of habitual residence under the 1980 Hague Convention, even citing section 3 Family Law Act 1986—a misstep. The Court of Appeal held that while judges may evaluate a child’s degree of connection with each country (“home country”), there is no jurisdictional or procedural warrant to import the “technical concept” of habitual residence or the lexicon of wrongful removal (Re J at [22], [33]; Re NY at [57]). On the facts, however, the findings on where the children had integrated and settled effectively informed the home-country analysis.

3. Best Interests and Welfare Checklist
The application turned on a prompt welfare assessment under the familiar checklist (section 1(3), Children Act 1989). The trial judge evaluated the risks and benefits of the children’s circumstances in England versus Nigeria: educational and therapeutic provision for D in Nigeria, the father’s commitments, the mother’s isolation in England, family support structures, and the likelihood of the mother complying with any return order. The Court of Appeal found no error in this substantive evaluation.

4. Domestic Abuse Allegations and PD12J
Although PD12J FPR 2010 does not strictly apply to inherent-jurisdiction returns, the trial judge sensibly treated it as relevant by analogy. She considered the mother’s grave allegations in detail, applied the PD12J factors (necessity, proportionality, alternative evidence, party agreement) and—given the mother’s own decision not to pursue rape/sexual-assault claims—declined to hold a separate fact-finding inquiry. This was held to be within her discretion and proportionate to the circumstances.

5. Solicitors’ Negligence
The judge below found Burnham Law negligent for failing to secure representation at a key hearing, but the Court of Appeal concluded that those failures did not undermine the mother’s written or oral evidence to such an extent as to render the proceedings unfair or skew the judge’s credibility findings.

Impact

Re O [2025] EWCA Civ 660 offers pivotal guidance on summary return applications against non-Hague Convention States:

It reaffirms that non-Convention returns are governed solely by the child’s welfare, under the court’s inherent jurisdiction, without mechanistic application of Hague Convention technicalities.
It clarifies the limited role of habitual residence—recognised only as one factor in a holistic “home country” assessment, not as a jurisdictional or presumptive gateway.
It endorses a proportionate application of PD12J to inherent-jurisdiction cases, ensuring that only those abuse allegations necessary to welfare outcomes are fact-found.
It underscores the imperative for prompt, realistic welfare assessments and sets out how judges should handle delays, representation failures, and domestic-abuse claims without losing sight of the children’s best interests.

Complex Concepts Simplified

Inherent Jurisdiction: The High Court’s residual power to make orders for the protection and welfare of children present in England & Wales when no specific statutory route applies.
Summary Return: A swift procedure for ordering a child’s return to another country (here, a non-Convention State) based solely on what serves the child’s immediate best interests.
Hague Convention (1980): An international treaty setting rules for the prompt return of children abducted between signatory States. Not applicable to Nigeria.
Habitual Residence vs. Home Country: “Habitual residence” is a technical Hague Convention concept. “Home country” is a broader, commonsense inquiry into which State a child is most closely connected.
PD12J FPR 2010: Practice Direction governing fact-finding in domestic-abuse allegations: requires necessity, relevance, proportionality, and party views to decide whether to hold a separate hearing.
Welfare Checklist (s. 1(3), Children Act 1989): A non-exhaustive list of factors (e.g., emotional, physical, educational needs; harm risk; family relationships) that a court must consider when deciding what serves a child’s best interests.

Conclusion

Re O [2025] EWCA Civ 660 cements the principle that in non-Convention summary return applications, the child’s welfare reigns supreme. It subordinates habitual residence to a commonsense home-country assessment and endorses a disciplined, proportional approach to domestic-abuse fact-finding under PD12J. The decision will guide practitioners and judges in ensuring prompt, child-focused resolutions when international dimensions complicate private law care disputes.