(Court of Appeal; Thorpe and Hallett LJJ and Bennett J; 29 March 2006)
The children were removed from the father's custody in Dominica, the country of habitual residence, by the mother and brought to England. The father sought the summary return of the children, although not under the Hague Convention on the Civil Aspects of International Child Abduction 1980 as Dominica was not a signatory. The father had supported his application for peremptory return with a brief, formal affidavit; he had also applied for return of the children in any event. The mother provided the court with a substantial affidavit which made a number of allegations against the father, including use of corporal punishment. The father prepared an affidavit in response, but this did not reach the court in time for the hearing. A Children and Family Court Advisory and Support Service (CAFCASS) officer gave oral evidence of the children's reports of significant use of corporal punishment at the father's hands, and his approval of corporal punishment by others, including teachers. The judge concluded that the fathers originating summons ought to be dismissed in its entirety, on welfare grounds.
While the refusal of the summary return application could be justified in the light of the report of the CAFCASS officers evidence, the originating summons should not have been dismissed in its entirety, as return might still be ordered on the basis that it was in the children's best interests. There should be a full trial of the issues, and consideration of whether or not to return the children on the basis of welfare.