C (A Child: Summary Return to Pakistan), Re [2025] EWHC 1427 (Fam) (04 March 2025)

In this case, Nicholas Stonor KC granted the mother’s application for the summary return to Pakistan of a young boy, A, who was aged 17 months. The child was a dual British and Pakistani nationality. The High Court considered whether to order A’s summary return to Pakistan. Although Pakistan has ratified the Hague Convention on the Civil Aspects of International Child Abduction 1980, it does not operate bilaterally between the UK and Pakistan because the UK has not accepted Pakistan’s accession. So this was an inherent jurisdiction case, notwithstanding the 2003 Protocol Child Abduction Cases between the UK and Pakistan—a bilateral agreement between the respective judiciaries of UK and Pakistan designed to address cases of child abduction between the two countries. While not legally binding, the Protocol guides the handling of such cases by courts in both countries. The mother submitted that the child was wrongfully removed by his father from Pakistan following a campaign of deceit perpetrated by the father in collaboration with the paternal grandmother. On the other hand, the father and paternal grandmother argued that the mother had agreed to the removal, and thus opposed the application for return. The Court examined A’s habitual residence, which was contested, and scrutinised the risk of harm on return. Nicholas Stonor KC emphasised that the child’s welfare was paramount and that inherent jurisdiction is not a substitute for Hague Convention system and it must be used sparingly, primarily where serious harm would result from refusing return or where other remedies are unavailable. 

Nicholas Stonor KC clarified that summary return to a non‑Convention country such as Pakistan under inherent jurisdiction is only appropriate in “exceptional circumstances” where delay would significantly harm the child. The Court held that the mother showed herself to be very capable of meeting the child’s physical and emotional needs and that the father’s actions had caused serious emotional harm to him and that for as long as he remained in his father’s care, he was at risk of serious emotional harm. Ultimately, the Court concluded that the welfare threshold for a summary return had been met and the mother’s application was granted. The Court heard oral evidence from the mother, the father, the paternal grandmother. The mother and the father had numerous discussions about the mother’s difficulties in securing a spouse visa. The Court said that the evidence showed that in June and July 2023, the father urged the mother to agree to him taking A to the UK without her. The plan was that the father, who was apparently due to undergo back surgery in the UK, could accordingly represent to the UK immigration authorities that the mother’s spousal visa application should be expedited because he could not care for A on his own. The evidence showed the father repeatedly pressured the mother to agree to this plan and the mother resisted and maintained that she could never leave her children.

Signing session

In early August 2024, the father and paternal grandmother arrived back in Pakistan. The mother and A joined them at a home belonging to the paternal family. The mother stated that on 9 August 2024, at that home, and in the presence of the father, his mother and a lawyer arranged by the father, she was asked to sign a number of documents relating to her visa application. 

The mother had a rudimentary knowledge of English and that it must have been during this “signing session” that she was made to sign and finger-printed the Consent Letter and an Affidavit. She said that she was put under pressure to sign the documents quickly with the father in particular getting angry and telling her to hurry up.

She also stated that the pressure also came from the paternal grandmother and that was also telling her to hurry up. She accepted that in her written evidence she had referred to the paternal grandmother being present but not that she had exerted any pressure. The paternal grandmother insisted that she was not present at all during the “signing session”. There was a Consent Letter dated 23 July 2024 which the father said was drafted for him by an immigration lawyer in the UK prior to him travelling to Pakistan. No evidence was been filed from such a lawyer. In evidence, the father told the Court that the mother had in fact told him to obtain such a letter. He accepted that this assertion had not featured in his written evidence. The letter was headed in bold “Consent Letter” and was expressed to be from the mother “To Whom It May Concern” and said: “I . . . hereby confirm that I consent to granting custody and parental responsibility of my child [A] to my husband [T] and father of the above mentioned child as I am finding it difficult to cope with him and my other children. I confirm that I am doing this of my own volition and have not been pressured into action. Yours faithfully . . .”. The father insisted that the mother signed this letter willingly. Next, the Court examined the Affidavit.

The Affidavit had a court seal and date stamp of 6 August 2024. It is expressed to be valid until 13 August 2024. It was headed in bold and underlined as “AFFIDAVIT” and “NO OBJECTION CERTIFICATE” and stipulates that: “I . . . do hereby solemnly affirm and declare as under:- 2. That my above mentioned husband is intending to residing purpose Abroad (UK). … 3. That I am allowing my real minor children namely [A] . . . with my husband / real father of minor [T] to go to abroad and I have no objection whatsoever on their with their real father. . . .”. The father insisted that the mother and her uncle obtained the Affidavit from Court and then presented it to him for the first time on 14 August 2024. 

The father booked return flights to the UK for himself, A, the paternal grandmother and another family member, and he left in the early hours of 15 August 2024. The father said that the mother knew that return flights had been booked. The mother told the Court that she did not. The mother said that a day earlier the the father told her that he wanted to visit another city in Pakistan to collect her passport, and also visit relatives and check on arrangements for a forthcoming family wedding. The mother said that the father became angry when she insisted that she wanted to accompany them, and so she relented. Notably mother claimed that the paternal grandmother indicated that she would accompany the father and A, though the paternal grandmother told the Court that she had stayed at home that day. The father said that he took A with the mother’s full knowledge and consent that they were going to travel back to the UK without her.

On 19 December 2024, the mother applied without notice for orders under the inherent jurisdiction. The same day, Judd J made a Tipstaff passport order and the matter was also listed for an on notice hearing on 14 January 2025. At that hearing, Arbuthnot J made A a ward of the English court and gave directions towards a summary return hearing on 20 and 21 February 2025. An order was made for indirect contact by means of daily video calls between A and the mother, with the father also directed to provide the mother with updates about A’s progress. One of the striking features of the case was that between 14 August 2024 and the hearing on 14 January 2025, a period of five months, there was no contact whatsoever between A and his mother (or C, the mother’s older child, aged six). 

Legal Framework

The parties agreed as to the applicable law. Although Pakistan has ratified the 1980 Hague Child Abduction Convention, the Convention does not operate bilaterally between the UK and Pakistan because the UK has not accepted Pakistan’s accession. Hence, the guidance in Re J (Child Returned Abroad: Convention Rights) [2006] UKHL 40 applied as to “non-Convention” cases. Similarly, the guidance imparted by the UK Supreme Court in Re NY (A Child) [2019] UKSC 49 also applied. As applied to the present case, the relevant legal principles were (i) A’s welfare is the Court’s paramount consideration and it was likely to find it appropriate to consider the first six aspects of the welfare checklist in section 1(3) of the Children Act 1989, (ii) it was for the Court to determine the extent to which it may be necessary to inquire into aspects of the welfare checklist or other disputed matters, and
(iii) whatever view taken about issues of habitual residence and wrongful removal, these feed into the Court’s welfare evaluation but were by no means determinative of outcome.

In January 2003, judges from the UK and Pakistan signed the Protocol Child Abduction Cases between the UK and Pakistan. The Protocol includes the following recitals which reflect its underlying “spirit”:

(a) Desiring to protect the children of the UK and Pakistan from the harmful effects of wrongful removal or retention from one country to the other 

(b) Mindful that the UK and Pakistan share a common heritage of law and a commitment to the welfare of children 

(c) Desirous of promoting judicial cooperation, enhanced relations and the free flow of information between the judiciaries of the UK and Pakistan 

(d) Recognising the importance of negotiation, mediation and conciliation in the resolution of family disputes 

The Protocol goes on to record a number of matters which are agreed between the UK and Pakistan. Pursuant to paragraph 1, it is agreed that: “In normal circumstances the welfare of a child is best determined by the courts of the country of the child’s habitual/ordinary residence”. 

Moreover, Paragraphs 2 and 3 provide that where there has been a removal or retention in circumstances where the left-behind parent has obtained a “custody/residence order or a restraint/interdict order from the court of the child’s habitual/ordinary residence”, jurisdiction in the country to which the child has been removed will ordinarily only be exercised to the extent necessary to make a return order. Finally, the Court observed that pursuant to paragraph 8 it is “further recommended that the judiciaries, the legal practitioners and the non-governmental organisations in the UK and Pakistan use their best endeavours to advance the objects of this protocol.” 

The order made by the High Court in Pakistan was not such as to engage paragraph 2 or paragraph 3 of the Protocol. However, the Court found that there was good authority to support the mother’s submission that the spirit of the Protocol is nonetheless engaged, as explained by Wilson J in Re H (Child Abduction: Mother’s Asylum) [2003] EWHC 1820, Francis J in Y v S [2017] EWHC 1020 and also NG v CJ [2024] EWHC 338 (Jonathan Glasson KC sitting as a Deputy High Court Judge) and S v A [2022] EWHC 2300 (Paul Hopkins KC sitting as a Deputy High Court Judge). 

Fact-Finding and Oral Evidence

The Court said that there were important factual disputes in this case. The Court kept well in mind the well-established principles relating to fact-finding. These include: the burden is on the party asserting that any particular fact is true; the standard of proof is the balance of probabilities. 

Moreover the Court must consider all of the evidence in the round, whatever the nature of the evidence; in relation to oral evidence, the Court must be cautious when drawing any inferences from a witness’s demeanour and must also make allowance for the fallibility of memory; people tell lies for all sorts of reasons; just because a person has lied about one matter, it does not mean that they have lied about other matters.

As to oral evidence, the mother’s oral evidence largely reflected her written evidence and it chimed with evidence from other sources, most particularly the voice-notes, her phone messages and the parties’ actions. Whilst her account of the paternal grandmother putting pressure on her during the signing session had not featured in her written evidence, but it made no sense that this detail was fabricated. There was frankly, in the eyes of the Court, no need for the mother to make that up.

The father’s love for his child was not in question but the Court found him to be a wholly unsatisfactory witness. His oral evidence differed markedly from his written evidence. He was quite prepared to make assertions which were preposterous. He was, at times, simply making it up as he went along. The Court was satisfied that his aim at all times was to try to show himself in a good light whilst denigrating the mother.

When considering the paternal grandmother’s evidence, the Court made allowance for the fact that she was in her mid-seventies and that giving evidence cannot have been at all easy for her. The Court explained there were aspects of her evidence which, like her son’s evidence, were simply preposterous. For example her claim that she did not know that she was flying back to the UK until 14 August 2024 itself. The Court was left with the strong impression that she was not trying to assist the Court but, like her son, was motivated by showing him (and herself) in a good light whilst denigrating the mother.

The Court’s Judgment 

Nicholas Stonor KC stated that A was habitually resident in Pakistan on 15 August 2024. He also said that A was being very well cared for by his mother. So the father’s criticisms of the mother’s care were self-serving and wholly unjustified. The plan for A to travel to the UK without his mother was suggested by the father. He said the mother was emphatic and consistent in expressing her opposition to that plan. He stated that the father obtained the Consent Letter and the Affidavit with a view to carrying out the plan which he knew the mother was opposed to. The paternal grandmother may not have known about the various discussions which the father and the mother had about the plan. However, she was quite well aware of the plan itself and of the mother’s opposition to the plan. The mother signed the Consent Letter and Affidavit without realising that she was doing so. Further, she was pressured into doing so by the father and by the paternal grandmother who knew that the mother was being deceived. The father and the paternal grandmother deceived the mother about their movements with A on 14 August 2024. A was removed from Pakistan without his mother’s knowledge or consent and Nicholas Stonor KC held that this was a wholly wrongful removal.

Between 14 August 2024 and 14 January 2025, a period of five months, the father and paternal grandmother, by their actions and inactions, had failed to promote any contact between A and his mother. Whilst the father was the driving force behind the wrongful removal and the refusal of contact between A and his mother, the paternal grandmother was fully aware of the father’s harmful behaviours and did nothing to mitigate them. The father and the paternal grandmother had lied to the court about important matters. 

The Court turned to considering A’s welfare. The fact that he was habitually resident in Pakistan as at 14 August 2024—and that his removal was wrongful—were by no means determinative of the outcome of the mother’s application. Nicholas Stonor KC held that: 

53. Whilst the spirit of the UK-Pakistan Protocols is engaged, it constitutes guidance but no more than that. I make it clear that, on the facts of this case, even if the Protocol did not exist, my decision – based on welfare grounds – would be exactly the same.

Nicholas Stonor KC also considered A’s wishes and feelings and explained that A was too young to express a view. However, he readily proceeded on the assumption that he would wish to have a meaningful relationship with both of his parents. 

Comment 

The Court examined A’s needs, change of circumstances, age, sex, background, capability of parents and harm suffered and risk of harm. Nicholas Stonor KC’s overall conclusion was that the father’s actions had caused serious emotional harm to A. He decided that as long as A remains in his father’s care, he is at risk of serious emotional harm. He said that as long as A remains in the UK, given his mother’s immigration status, there was little that the Court can do (whether under statute or in the exercise of the inherent jurisdiction) to promote a meaningful relationship between A and his mother. Overall, the Court was able to exercise its inherent jurisdiction to provide for A’s swift return to Pakistan where, if necessary, the Pakistani court can make appropriate welfare decisions for the child.  

The Court granted the mother’s application and wished her well in her resumption of A’s care. The focus had to be on securing A’s return to Pakistan swiftly and safely and in a way which minimises the risk of him becoming distressed. Nicholas Stonor KC said that the father and paternal grandmother both assured him that they would respect his decision if he made a return order. Although the father had behaved cruelly and showed a complete disregard for A’s emotional welfare, the Court accepted his promises and requested, in the spirit of the UK-Pakistan Protocol, that the Pakistani authorities provide such assistance as they can with a view to ensuring that the child’s return to his mother’s care is managed smoothly. The oddity about this case is that Pakistan has ratified the Hague Convention on the Civil Aspects of International Child Abduction 1980. However, the Convention does not operate bilaterally between the UK and Pakistan because the UK is causing delay by not accepting Pakistan’s accession.