Factual and Procedural Background
The appeal concerned child-arrangements proceedings involving two pre-teen children, X and Y. The family had moved from England to State A after the mother obtained overseas employment. The parents disputed allegations concerning domestic abuse, coercive control and the mother's alcohol use. [1][2][3]
After the mother returned to England with the children, the Appellant applied for child-arrangements and related orders, while the First Respondent applied for their summary return to State A under the Hague Child Abduction Convention. The Convention application was dismissed on the basis that the children remained habitually resident in England and Wales. [4][5][6]
Following a final hearing, the trial judge ordered that the children live with the First Respondent, permitted their immediate relocation to State A, and provided for little or no contact between the Appellant and X. The Appellant appealed. [7][8]
The Court of Appeal allowed the appeal on one ground, set aside the trial judge's decision and findings, remitted the cross-applications for a complete rehearing before another judge, and made interim arrangements pending that rehearing. [1][9][10]
Legal Issues Presented
- Whether the trial judge improperly treated observations made in summary Convention proceedings as factual findings carrying weight in the subsequent Children Act proceedings. [11][12][13]
- Whether the trial judge assessed the evidence in the correct sequence, including the allegations concerning the December 2025 incident before determining whether the Appellant had influenced X's views or coercively controlled the First Respondent. [14][15][16][17]
- What interim child arrangements were required pending the rehearing, applying the welfare principle and Practice Direction 12J. [18][19][20][21]
Arguments of the Parties
Appellant's Arguments
- The observations in the Convention judgment were not findings of fact because the proceedings were summary, oral evidence was not called or tested, and the observations should not have been treated as the starting point in the Children Act proceedings. [11][22][13][23]
- The trial judge should have determined the mother's drinking and the December 2025 incident before assessing whether X's views resulted from manipulation or were an appropriate response to the mother's conduct. [24][25][26]
- The trial judge had failed to undertake a sufficiently holistic welfare analysis and had given insufficient weight to the children's wishes and feelings and to the circumstances of Y. [27][28][29][30][31]
First Respondent's Arguments
- The trial judge was entitled to make observations or findings in the Convention proceedings because of the extensive evidential material before him. [26][32]
- The trial judge was entitled to rely on those conclusions in the Children Act proceedings, particularly as the Appellant had not appealed against them and fresh evidence concerning his later conduct had also been heard. [32]
- The First Respondent challenged the findings that the December 2025 assault had not occurred and that she had deployed the allegation to distract from her alcohol use. [33][34]
Children's Guardian's Position
- The Guardian submitted that the Convention observations could properly be treated as findings and that the trial judge had revisited them in light of the oral evidence given in the Children Act proceedings. [35][36][37]
- The Guardian invited the Court to dismiss the appeal, while supporting interim arrangements in which the children would live with the First Respondent and have professionally supervised contact with the Appellant. [18]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re B (Children) [2008] UKHL 35 |
The burden and standard of proof, including the warning against treating the burden of proof as a basis for “sitting on the fence”. |
The trial judge cited the case when determining the December 2025 incident; the Court of Appeal did not uphold the resulting determination because the appeal required a complete rehearing. [38][39][10] |
| Re Y (Experts and Alienating Behaviour: The Modern Approach) [2026] EWFC 38, [2026] 3 All ER 686 |
Where domestic abuse and alienating behaviour are cross-alleged, the court should determine the domestic-abuse issues first and then assess whether the child's response is justified or results from alienating behaviour. |
The Court of Appeal considered that the trial judge's sequencing was contrary to this modern approach. [24][40][25][15] |
| Re F (A Child) (Habitual Residence) [2025] EWCA Civ 911 |
Authority relied upon for the proposition that findings may be made in Convention proceedings. |
The Guardian relied on it, but the Court focused on the status and weight of the particular observations made in these summary proceedings. [37][12][41] |
| TMS v AVS [2023] EWHC 1620 (Fam) |
Authority relied upon for the court's ability to make findings in Convention proceedings. |
The Guardian cited it in support of the trial judge's approach; the Court of Appeal held that the observations in this case had no status or weight in the later Children Act proceedings. [37][41][13] |
| Volpi v Volpi [2022] EWCA Civ 464 |
The limited circumstances in which an appellate court may interfere with factual findings. |
The Guardian relied on it to argue that the findings were open to the trial judge on the totality of the evidence. The appeal was instead allowed because the reasoning process was legally irregular. [37][9] |
| Re T [2004] EWCA Civ 558, [2004] 2 FLR 838 |
Evidence must not be evaluated in separate compartments; the court must assess the relevance of each piece of evidence to the others and consider the totality. |
The Court held that the trial judge assessed the Appellant's influence on X before determining the December 2025 incident, contrary to this principle. [42][43][16] |
Court's Reasoning and Analysis
Convention proceedings are summary proceedings concerned with the return of a child wrongfully removed from the country of habitual residence, not with determining future care and welfare arrangements. The court's jurisdiction to decide custody-related matters is restricted until the Convention application has been resolved. [12][44]
Evidence in such proceedings should be confined to the issues arising under the Convention, and oral evidence is ordinarily discouraged unless necessary. The fact that the parties had filed extensive evidence did not enlarge the scope of the proceedings or the court's powers. [45][46][47][48]
The allegations concerning domestic abuse, coercive control, alcohol use and manipulation of X were not relevant to the habitual-residence issue actually decided. The Court was therefore doubtful that the trial judge's observations could properly be called findings of fact. They were impressions formed from written evidence and exhibits without cross-examination. [49][41][50]
Those observations should not have been treated as the starting point for the Children Act proceedings. Doing so risked shifting the burden onto the Appellant to disprove allegations and meant that the later oral evidence was not assessed afresh. [51][13][23]
The December 2025 incident was relevant to whether X's views resulted from the Appellant's manipulation or were a response to conduct by the First Respondent. It was also potentially relevant to the allegations of coercive control. The incident therefore had to be determined before, and then considered as part of, the analysis of parental influence and coercive control. [14][52][15][16][17]
Because the trial judge reversed that sequence and relied on the Convention observations, the Court concluded that his approach was irregular. It allowed the appeal on that ground, set aside the decision and findings, and ordered a complete rehearing. [17][9][10]
For the interim period, the Court applied the welfare principle and the statutory welfare checklist, including the children's wishes and feelings, needs, likely effect of change, parental capacity and risk of harm. It also applied Practice Direction 12J, which requires particular attention to domestic-abuse risks and the safety of the children and parents. [19][53][20][54][55][56][57]
The Court considered that the children should remain together, that there was a risk of emotional harm if they were in the Appellant's care, and that the available evidence did not materially undermine the First Respondent's short-term capacity to care for them provided she remained abstinent. The children were therefore to return with the First Respondent to State A and have professionally supervised contact with the Appellant. [21][58][59][60][61][62]
Holding and Implications
APPEAL ALLOWED. The trial judge's decision and findings were set aside, and the cross-applications were remitted for a complete rehearing before another judge of the Family Division. The Court did not determine the parties' ultimate welfare claims or the First Respondent's cross-appeal concerning the December 2025 incident. [9][10]
Pending rehearing, the children were to live with the First Respondent, return to school in State A, and have supervised contact with the Appellant in State A and England. The First Respondent undertook to return the children to England if ordered by the High Court. [63][64]
The decision confirms the direct procedural consequence of treating observations from summary Convention proceedings as welfare findings: those observations should not carry weight in subsequent Children Act proceedings where they were not necessary to determine the Convention issue and were not reached after a full fact-finding process. The interim arrangements were expressly stated not to influence the final determination. [41][65][13][66]