O, Re (Summary Return: Non-Convention Country)

Factual and Procedural Background

The appeal concerns two children, a five-year-old boy and his four-year-old sister. The Appellant is their mother, and the Respondent is their father. The mother appeals an order made by a Deputy High Court Judge on 21 February 2025, which ordered the summary return of the children to Nigeria, a non-Convention country not party to the 1980 Hague Convention on International Child Abduction. The return was to take effect by 1 March 2025. The mother obtained permission to appeal and a stay was granted, so the children remain in this jurisdiction pending appeal.

The parents are Nigerian nationals; the father has British citizenship and has lived in England since 2004, while the mother obtained British citizenship in 2023. The children were born in England. The father moved to a third country for work in December 2022, with the mother and children remaining in England. In December 2023, the mother and children joined the father in the third country before traveling to Nigeria, where the family lived with the father's family and accessed specialist therapy for the boy's complex special needs.

In spring 2024, the mother regarded the marriage as broken down and left Nigeria with the children to England without the father's knowledge. The father initiated proceedings in England seeking summary return of the children to Nigeria. The mother made serious allegations of domestic abuse against the father and his family, including rape and sexual assault, which she later chose not to pursue at trial. The father alleged the mother was verbally and physically abusive towards the children, supported by video evidence of the mother hitting the boy.

The case experienced procedural delays, including negligent failure by the mother's former solicitors to instruct counsel for the initial final hearing, resulting in a wasted costs order against them. The final hearing took place over four days in January 2025, after which the Deputy High Court Judge ordered the children’s return to Nigeria, rejecting the mother's domestic abuse allegations and finding it in the children’s best interests to return.

Meanwhile, divorce proceedings in Nigeria dissolved the marriage and granted the father full custody, though he agreed not to enforce the custody order if the mother returned to Nigeria. The mother has sought to set aside the divorce order.

Legal Issues Presented

1. Whether the Judge erred in her assessment of the children's habitual residence, including failure to consider the temporary nature of their stay in Nigeria and the impact of the third country on their integration.
2. Whether the Judge failed to properly consider the mother's allegations of rape and sexual assault in accordance with Practice Direction 12J of the Family Procedure Rules 2010, constituting a procedural irregularity.
3. Whether the failure to address the most serious domestic abuse allegations was a significant oversight relevant to welfare considerations and the mother's credibility.
4. Whether the Judge conducted an inadequate welfare assessment by failing to weigh the pros and cons of the children's future care options, particularly regarding separation from their mother.
5. Whether the Judge failed to properly consider the impact of negligent representation by the mother's former solicitors on the fairness of the proceedings and the assessment of the mother's credibility.

Arguments of the Parties

Appellant's Arguments

• The Judge improperly focused on habitual residence, applying technical Hague Convention concepts inappropriate for a non-Convention summary return application.
• The Judge failed to consider the temporary nature of the children's stay in Nigeria and the significance of the third country on their habitual residence and welfare.
• The Judge did not properly consider or provide reasons for not determining the serious allegations of rape and sexual assault, breaching procedural requirements under PD12J.
• The welfare assessment was flawed, lacking a balanced analysis of the effects on the children, especially regarding the impact of separating them from their mother if returned to Nigeria.
• The negligent preparation by the mother's former solicitors materially impaired her ability to present her case, leading to unfair adverse credibility findings.

Respondent's Arguments

• The Judge was entitled to consider habitual residence as part of the factual matrix, and her findings on this issue informed the identification of the children's home country.
• The Judge properly respected the mother's decision not to pursue the most serious abuse allegations, applying PD12J correctly and considering proportionality and court resources.
• The Judge conducted a thorough welfare assessment, balancing positives and negatives of each jurisdiction and concluding that return to Nigeria was in the children's best interests.
• The adverse findings on the mother's credibility stemmed from her own inconsistencies and false allegations, not from failings of her former legal representatives.
• The Court should be cautious in interfering with first-instance fact findings, especially given the Judge’s benefit of hearing all evidence and observing the parties.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court acknowledged that the application for summary return to a non-Convention country must be determined by the child’s best interests, without importing technical Hague Convention concepts such as habitual residence or wrongful removal. While habitual residence is a key jurisdictional concept in Hague cases, it is not determinative here. The Judge erred in giving habitual residence primary significance and in reliance on statutory provisions irrelevant to the inherent jurisdiction application. However, the Judge’s factual findings about the children’s integration and settled life in Nigeria were relevant to identifying their home country and informed the welfare assessment.

The Judge carefully considered the mother’s domestic abuse allegations, applying the principles of PD12J and relevant case law on fact-finding. Given the parties’ agreement and the proportionality considerations, the Judge was entitled not to determine the most serious allegations (rape and sexual assault). The Judge’s rejection of the mother’s abuse claims was supported by evidence and credibility findings.

The welfare assessment, conducted with reference to the statutory welfare checklist, balanced the children’s circumstances in England and Nigeria. The Judge found that the children were settled and integrated in Nigeria, with family support and therapeutic provision, while their position in England was precarious and unsettled. The Judge also found the mother’s stated refusal to return to Nigeria was tactical, with no objectively reasonable grounds for refusal. The Judge accepted the father’s undertakings to support the children and mother upon return.

The Court rejected the argument that the mother’s former solicitors’ negligence caused unfairness affecting the credibility findings. The adverse findings were based on inconsistencies and evidence independent of legal representation failings. The Court emphasized judicial deference to the trial Judge’s advantage in observing witnesses and managing the case.

Overall, despite errors in emphasis and legal framing, the Judge’s decision was grounded in a clear, welfare-based analysis and supported by the evidence.

Holding and Implications

The Court DISMISSED THE APPEAL.

The order for the summary return of the children to Nigeria is upheld. The Court directed the lifting of the stay on the return order and anticipated that the children’s return should occur within fourteen days of the judgment. The decision affects only the parties involved and does not establish new legal precedent beyond reaffirming established principles regarding summary return applications under the inherent jurisdiction to non-Convention countries. The judgment underscores the primacy of the child’s best interests in such applications and clarifies the limited role of habitual residence concepts outside Hague Convention contexts.