DC v DC

The father (“F”) of a child now aged 3 ½ (“O”) applied on 12 February 2025 for a summary return order to Thailand pursuant to the inherent jurisdiction of the High Court. The children’s mother (“M”) opposes the application. As explained by Moylan LJ at para 3 of Re A and B (Children: Summary Return: Non-Convention State) [2022] EWCA Civ 1664, “summary return order” is shorthand for a return order made after a summary welfare determination.

Thailand is a signatory to the 1980 Hague Convention, but the United Kingdom has not yet accepted its accession. The Convention therefore does not apply in this case.

The law in cases where a return order is sought to a non-Hague Convention country is well established.

In Re J (A Child) (Child Returned Abroad: Convention Rights) [2005] UKHL 40; [2006] 1 AC 80, Baroness Hale held as follows:

In Re NY (A Child) [2019] UKSC 49; [2020] AC 665, Lord Wilson set out questions that the first instance judge should have "at least given some consideration to":

“56.

First, the court, which was sitting on 18 June 2019, should have considered whether the evidence before it was sufficiently up to date to enable it then to make the summary order. The mother’s statement in answer to the claim under the Convention was dated 29 March 2019. In it she had devoted seven out of 67 paragraphs to assertions of the child’s habitual residence in England and of particular circumstances said to demonstrate how happy and settled she had become. In his statement in reply dated 11 April the father had joined issue with the mother’s assertions. The oral evidence given by the parties to the judge on 15 April had been limited to the issue of consent to the child’s removal from Israel and so had not addressed these matters.

57.

Second, the court should have considered whether the judge had made, or whether it could make, findings sufficient to justify the summary order. The only relevant finding made by the judge had been that on 10 January 2019, only seven weeks after her arrival in England, the child had retained habitual residence in Israel. Was that sufficient to justify the making of a summary order five months later? In the light of the policy in favour of the making of substantive welfare determinations by the courts of habitual residence, did there need to be inquiry into the child’s habitual residence at the relevant date, which, in the absence of an application, was in this case the date of the proposed order?

58.

Third, the court should have considered whether, in order sufficiently to identify what the child’s welfare required for the purposes of a summary order, an inquiry should be conducted into any or all of the aspects of welfare specified in section 1(3) of the 1989 Act and, if so, how extensive that inquiry should be: see para 49 above. It might in particular have considered that the third of those aspects, namely “the likely effect on [the child] of any change in [her] circumstances”, merited inquiry.

59.

Fourth, the court should have considered whether in the light of Practice Direction 12J, an inquiry should be conducted into the disputed allegations made by the mother of domestic abuse and, if so, how extensive that inquiry should be: see para 50 above. The judge had made no findings about them. Instead, in accordance with the E case cited in para 12 above, he had, for the purposes of the claim under the Convention, made a reasonable assumption in relation to the maximum level of risk to the child arising out of any domestic abuse to be perpetrated by the father and had considered that such risk would be contained within acceptable limits by undertakings offered by the father, the enforceability of which in Israel the judge had not explored. Consideration should therefore have been given to whether, in a determination to be governed by the child’s welfare, the judge’s approach to the mother’s allegations remained sufficient.

60.

Fifth, the court should have considered whether, without identification in evidence of any arrangements for the child in Israel, in particular of where she and the mother would live, it would be appropriate to conclude that her welfare required her to return there.

61.

Sixth, the court should have considered whether, in the light of its consideration of the five matters identified above, any oral evidence should be given by the parties and, if so, upon what aspects and to what extent.

62.

Seventh, the court should have considered whether, in the light of its consideration of the same matters, a CAFCASS officer should be directed to prepare a report and, if so, upon what aspects and to what extent. It is noteworthy that in the L case discussed in para 43 above, a CAFCASS report had been prepared. It had been designed to ascertain the boy’s wishes and feelings and so was apparently made as if pursuant to section 1(3)(a) of the 1989 Act: see para 14 of Baroness Hale’s judgment. In her careful weighing, in paras 34 to 37 of her judgment, of the welfare considerations which militated both in favour of, and against, the boy’s return to Texas, Baroness Hale relied to a significant extent upon the content of the CAFCASS report.

63.

Eighth, the court should have considered whether it needed to compare the relative abilities of the Rabbinical Court in Jerusalem and the Family Court in London to reach a swift resolution of the substantive issues between the parents in relation to the child and to satisfy itself that the Rabbinical Court had power to authorise the mother to relocate with the child back to England: see para 34 above.

At a case management hearing on 23 May 2025, I decided that there should not be a fact finding hearing on M’s allegations of domestic abuse for the following reasons:

Both parties were content with this approach. I accordingly did not conduct a fact finding hearing. Nor did I hear any oral evidence other than some short evidence from the Cafcass Officer.

Having now heard submissions, I am satisfied that I have had ample material to reach a just decision and it was the correct decision not to receive oral evidence on the domestic abuse allegations.

M is British, and F is Malaysian. They started a relationship in May 2020 in Thailand. They began living together in Bangkok in October 2020. They married in April 2022. O was born shortly thereafter. O has dual British/Malaysian citizenship. The family lived in Thailand, worked there and made their home and life there. Until his arrival in England in October 2023, O had never been outside Thailand.

During 2022 and in particular 2023, there were relationship difficulties and W mentioned divorce to H. On 30 October 2023, M left Thailand with O, and travelled to England. She has been living in England ever since. F was not informed of their departure in advance, did not know of it and did not agree to it. M thereafter kept her and O’s whereabouts secret from F, which on any view must have been highly distressing for F, and confusing for O. She deceived F into believing that they were still in Thailand. It was only in February 2024 (some four months later) that he learned of their presence in England.

F’s primary concern was to re-establish contact with O. In March/April 2024 he offered to attend mediation which M refused. F encountered delays in applying for public funding (which was rejected) and securing lawyers. Solicitors’ correspondence from his lawyers to M elicited no response. On 7 January 2025 (nearly a year after he had become aware of O’s whereabouts) F made an application by Form C100 for contact in the local Family Court, although not for a return order. A first hearing took place on 27 January 2025.

On 10 February 2025, F applied in the High Court under the inherent jurisdiction for an order that O be returned to Thailand.

On 17 February 2025, a judge in the local Family Court made an order adjourning the children proceedings, with liberty to restore by 16 August 2025. The order provided that “If not restored by that date then the proceedings will be deemed dismissed”. As far as I am aware, no application to restore was made by the due date. It follows that the Children Act proceedings in the local Family Court have come to an end.

Various case management hearings in the return order application have taken place, and video contact was provided for. On 9 October 2025, the day after this hearing, a supervised in person session of contact is due to take place at a contact centre.

The Cafcass Officer observes that O is healthy and well cared for by M. She has concerns about the impact on M’s mental health if a return order is made, and the impact on O of having been exposed to domestic abuse. If a return order is made, robust protective measures are required.

She says that O has connections in England and Thailand, but has now lived here for 2 years, longer than his time in Thailand which was about 1 ½ years. He has no extended family on either side in Thailand, whereas he is surrounded by M’s extended family here. He is integrated into life in England. O experienced sudden change when removed from Thailand to this country, which would have been disorientating, but a returning to Thailand would be another upheaval as he would have to start all over again. She points out that O’s welfare is inextricably linked with that of M.

A SJE expert report on Thai law, prepared by a Thai lawyer and an English solicitor, says as follows:

F says that before his removal from Thailand, O was settled and integrated there. He had lived his whole life in Thailand, having not once left the country; his ties and life were rooted in Bangkok. He had never visited England. Both M and F had lived in Thailand for over ten years.

F says he was a hands on father who developed a strong bond with O. He says that M’s family looked down on him, and her father intimidated him at their wedding. He and M had ups and downs, but he did all he could to provide a stable home and to support M who he acknowledges was fragile. After O’s birth their arguments became more frequent. He was under a great deal of pressure after the death of his mother, and struggled to re-establish his work after Covid. M may have misinterpreted some of his behaviour. He accepts that at times he raised his voice. He was devastated by M’s departure with O in secret which he says was unjustified. He thinks that M forged a consent document to enable O to travel out of Thailand. After they left Thailand, M and her parents deceived him into believing that M and O were in fact still there. Losing contact with O has been enormously distressing. He says there was no justification for the wrongful removal, and M has sought to obstruct his relationship with O.

F says he is not a threat to M or to O. He denies most of the allegations made by M, although some of them seem to have been acknowledged by him in WhatsApp messages and voice recordings. He says he was at times overwhelmed, emotional and regretful, but never abusive.

He says a return to Thailand for O would be a return to a country he knows, and is important for his sense of Asian identity and heritage. He says he can put in place protective measures until the Thai court is fully seized; these would include provision of housing and financial support.

F seeks not just the return of O to Thailand, but for O to be placed full time in his care. He proposes in his written evidence a three month transition phase in Thailand by the end of which O would be living with him, and spending time with M. In his discussion with the Cafcass officer, and submissions to the court, he says he is willing to agree that O should live with M until such time as the Thai court considers matters, whereupon he hopes that the Thai court would order that O lives with him or that there be an equal shared care arrangement.

M says she was subjected to controlling and abusive behaviour by F, which I summarise as follows:

M says that she and O are settled in England. They have built a new life. They are surrounded by M’s family. O is thriving, doing well at nursery school and integrated in the community. The court proceedings have provoked flashbacks and episodes of anxiety for her. M is supported by a charity for victims of domestic abuse. Her GP has prescribed Sertraline, and she has been referred to a mental health nurse.

If an order were to be made for O to return to Thailand, M would accompany him but would fear for her own safety and for O’s wellbeing. She says that she does not have a work permit, so could not earn an income. She has limited visa rights in Thailand.

In reaching my conclusions, I have considered all the evidence and submissions in the round. I am guided by O’s welfare as the lodestar in this case. I acknowledge that both parents feel strongly, both want to do the best for O, but both have different views about what is in his interests.

I accept that the manner in which M removed O must have been turbulent and confusing for O. It was also alarming and upsetting for F who did not even know in which country O was for four months. The circumstances of O’s departure have undoubtedly made the prospect of the parents working together in the future for the benefit of O that much harder. F also makes the valid point that O was living in Thailand at the time of his departure and had been there since birth, a period of about 1 ½ years. There are obvious connections with Thailand. I accept that F poses no direct threat to O, and wants above all to re-establish a relationship with him. Finally, I accept that I am entitled to assume that Thailand’s legal, security and administrative agencies have appropriate legal and other provisions to ensure that O’s welfare is the central consideration in any dispute, that M will be able to pursue her case in Thailand, that any English order is likely to carry considerable weight, and that all matters, including alleged domestic abuse, will be properly considered by the Thai court. If there is any lingering concern about whether the Thai court would make an order which aligns with the English order, it would be open to me to make a return order conditional on an appropriate Thai order being in place.

However, on balance, and having carefully considered all the competing arguments, in my judgment the application must fail and I decline to make a return order. I have come to this conclusion for the following principal reasons:

In reaching this conclusion, I am not considering the application in terms of the 1980 Hague Convention where M would need to establish an Article 13(b) defence. There is no threshold to be met. I am looking at all matters in terms of O’s welfare, and the impact on him (directly, and indirectly through M) of a return to Thailand as against remaining in England. In my judgment, the scales tip clearly and firmly in favour of remaining in England. The application for a return order is dismissed.

That is not the end of matters. F is entitled to bring an application for a child arrangements order in the local family court in England. The Cafcass Officer referred to the benefits of O having a relationship with both parents, and growing up knowing both sides of his background. I sincerely hope that the parents will be able to reach a sensible long term welfare arrangement for O with as little court intervention as possible.

During submissions I invited M, through counsel, to indicate her approach to contact in the event of the application for a return order to Thailand being refused. It seems to me that the parties are now separated by thousands of miles, their relationship is over and the time has come to look to O’s future. I have commented in other cases that in my experience the real issue is often not a return to the country from which the child has been removed, but the fervent wish of the left behind parent to continue a relationship with their child, and the anxiety that the relationship might be brought to an end. That, I suspect, is what motivates F here; it was the loss of that relationship, and the frustration at what he perceived to be M’s obstructive attitude towards contact, which prompted his application for a return order. It is now more difficult to restore the parent/child relationship as F has not seen O for two years, but it can be done. It requires each to respect the other, and to work together for the benefit of O. Hopefully, the outcome of these proceedings will give them each some clarity and allow them to look more to the future and dwell less on the past. The impression I have of both parties is that they are willing to do so.

M through counsel indicated that looking forward she suggests the following in principle:

This is a framework which should be incorporated as a recital to the order.