Summary
The proceedings were in respect of a child who was born in September 2007 in England.
The mother was Lithuanian. She came to England in about 2004/5. The father was Romanian who came to England in 2002. They met in England in 2005. They began relationships, and started to live together.
After the child’s birth, the mother and the child made a number of visits to Lithuania.
In July 2008, the mother informed the father that she was not intending to return with the child to England.
The father made an application for a summary return of the child to England.
The request was refused, on the ground of Article 13b of the 1980 Hague Convention, by the Lithuanian court on 6th March 2009.
Article 11(7) became relevant.
The matter came before the English court in May 2009. The English judge allowed the mother to live permanently with the child in Lithuania, setting out a contact regime between the father and child. In this context, Mr Justice Charles noted:
“14 Standing back from that it seems to me that neither the court process here nor in Lithuania can take pride from that timetable. It is easy to say that with the benefit of hindsight and if one stops at each stage of each of the processes it is easy to understand why what happened did happen. But it is in the context of that overall timetable that I have been asked to make some comments as to a general approach which other judges might consider it appropriate to adopt in cases of this type. As will appear from the history, as I have described it, what has happened at the end of the English process is that there has been essentially a full welfare inquiry, in which the Guardian, who is an officer with CAFCASS, has visited Lithuania and has also observed contact in this country. She has also had discussions with Social Services in Lithuania, with the parents, and with members of the mother's family in Lithuania.” [14]
The High Court judge made the following observation:
17 […], there are likely to be growing numbers of cases under Article 11(7) . As to the jurisdiction and role of the court, it seems to me: first, that what the court is not doing is carrying out an appeal process in respect of a decision of a foreign court or anything akin to that. Secondly, it seems to me that the court is not itself applying Article 13 or a Hague jurisdiction as such. Rather, it seems to me, that what the court is doing is exercising the jurisdiction it always held under Article 10 which is a welfare jurisdiction and therefore it is a welfare approach that has to be applied. Within that approach applying English law, there is the ability of the court to order a summary return of a child to another jurisdiction. So it seems to me that the court in exercising its welfare jurisdiction has the power to make a summary order under Article 11(7) in an appropriate case (see by analogy to the decision of the House of Lords in Re J (A child: custody rights jurisdiction) [2006] 1AC 80 ). In particular, I would draw attention to paragraph 26 of the speech of Baroness Hale in Re J which identifies that summary orders are within the jurisdiction of the court and from paragraph 29 onwards where she deals with the factors to be taken into account by the court in making the choice as to whether or not to order a summary return or to embark upon a welfare inquiry.
18 Necessarily, a summary return does not involve a full welfare inquiry or anything approaching it, albeit it that it is applying a welfare test. In the present context it would, however, inevitably involve an effective rejection or an effective refusal not to follow the decision of the foreign court not to return the child under Article 13 , but that is nherent in Article 11(7) itself. It seems to me that cases could well arise for a variety of reasons in which this court may feel it appropriate to exercise its jurisdiction under Article 11(7) on a summary basis albeit applying a welfare test. […].” [17-18]