S (A Child): Refusal of Summary Return to UAE, Re [2025] EWHC 892 (Fam)

[2025] EWHC 892 (Fam)

Case No FD25P00001

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 10/04/2025

Before

MR JUSTICE MCKENDRICK

Between

A FatherApplicant

A MotherRespondent

(Re S (A Child): Refusal of Summary Return to UAE)

Mr Edward Bennett (instructed by A Firm Of Solicitors) for Applicant

Mr Jonathan Rustin (instructed by Otton Penna Solicitors) for Respondent

Hearing Hearing dates: 8-10 April 2025

APPROVED JUDGMENT

This judgment was handed down remotely at 10.30am on 10 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

THE HONOURABLE MR JUSTICE MCKENDRICK

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child (A) must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

[1]The applicant father seeks the summary return of his son to the United Arab Emirates (hereafter the “UAE”). The respondent mother opposes the application. The dispute is about S, a little boy, who was born in June 2023 and is 1 year 10 months old.

[2]The application was issued on 31 December 2024. At a hearing on 16 January 2025, Sir Jonathan Cohen listed the matter for a pre-trial review and a three day final hearing. He directed a local authority in the North of England file and serve a letter setting out its involvement with this family. He directed the parties file and serve witness statements and schedules of allegations. Sir Jonathan concluded it was neither proportionate nor necessary to direct a report from CAFCASS.

[3]At a hearing on 11 February 2025 Mr David Rees KC agreed the instruction of a Part 25 expert, Mr Andrew Allen KC, on the law of the UAE. Mr Rees KC directed:

“The parties shall forthwith jointly instruct Andrew Allen KC to provide a Part 25 expert report in accordance to address the questions approved by the court at this hearing. The mother’s solicitors shall take the lead in the instruction and must ensure that the father is copied into all correspondence with the expert. The costs shall be shared equally by the parties. The report must be filed by 4pm on 31 March 2025, this being the date the expert has said they can report by. The costs are certified as a necessary and proportionate cost on the mother’s legal aid certificate provided that they are capped at no more than £4,000 exc VAT. The expert must ensure that they are available to attend the final hearing on 8 April 2025 if required to do so by either party. Such attendance may be remote. The parties must notify the court and the expert not later than 4pm on 4 April 2025 if the expert is required to attend and if so if they wish to attend by remote means.”

[4]A pre-trial review took place before Cusworth J on 4 March 2025. He determined a fact finding hearing was not required to determine the summary return application. He also directed that the issue of oral evidence should be determined as a preliminary issue by the trial judge at the outset of the three day hearing.

[5]At the outset of the hearing before me, the parties agreed it was not necessary for them to give oral evidence. The mother sought to cross-examine Mr Allen KC. Mr Bennett opposed the application on behalf of the father. I refused that application. I therefore heard submissions only. Mr Rustin identified issues he wanted to ask Mr Allen KC. However, he did not explain why these issues were not set out in the letter of instruction. Nor why questions had not been put about these issues when the report had been received. Nor could he explain why Mr Rees KC’s directions as to the calling of oral evidence of Mr Allen KC had not been complied with. I do not accept this was because there was insufficient time. The failure to follow the directions on this issue is a good enough reason to refuse the request for cross-examination. However, more fundamentally if the identified issues were not ones formulated in the letter of instruction or in questions upon receipt of the report, then I cannot be persuaded it is necessary to permit cross-examination of these issues at the hearing. The fact the court had time to accommodate such questioning is no answer to the need to follow the rules and directions made.

[6]I have determined to refuse the summary return order and I endeavour to set out my reasons for arriving at that decision below.

Background

[7]The father and mother met in April 2019 and in July of that year entered into an Islamic marriage. The mother moved into the father’s family home in November 2019. They travelled frequently, often to Dubai but also to Pakistan, Europe and the USA. They moved to Dubai. The father says they agreed to move. The mother says she agreed to visit for a holiday and was then required by the father to remain there for longer than she wanted, losing her employment in England. In June 2023, S was born in England. The mother had returned months before the birth to access healthcare in England. The father has parental responsibility for S; he is named on the birth certificate. On 17 November 2023 the parties and S travelled to live in the UAE, in the Emirate of Dubai. They obtained two year permanent residence permits on arrival. Between 3 June 2024 and 25 July 2024 the mother and S were in England for a long holiday. On 2 December 2024 the mother and S travelled from Dubai to England ostensibly to celebrate the maternal grandmother’s birthday. The mother then unlawfully retained S in England without the father’s consent. It is accepted between the parties S was habitually resident in the UAE on 2 December 2024. It is accepted the mother did not have the father’s consent to relocate S to England and Wales and the retention was therefore wrongful. When the father returned to England on 19 December 2024 he was arrested and made the subject of bail conditions. The mother and S have lived with the maternal grandmother in the north of England since. The father has returned to work in Dubai.

Father’s Evidence

[8]The father has filed four witness statements. The first two are long and repetitive. I briefly summarise his written evidence.

[9]The father sets out the background to their relationship. He states that a few weeks after the mother moved into his home, she was emotionally and psychologically abusive towards him. He says she was controlling. She would regularly check his mobile telephone. He complains her relationship with her mother was unhealthy and this impacted on their relationship. He alleges sexual abuse. He says they went on holiday to Dubai and in May 2022 moved there. When the mother discovered she was pregnant she wanted to return to the UK to give birth. He charts a difficult time when the mother was in England before and after the birth. He returned to Dubai to work after the birth in July 2023 and returned in November 2023 to take S and his mother to Dubai to live. He says threats of abuse continued to be made by the mother in Dubai. Matters came to a head when there was a disagreement on 15 November 2024. He alleges the mother threatened to throw a glass at him and he felt intimidated and threatened. He sets out the mother flew to the UK and then cut off video contact between him and S on 4 December 2024. He arrived on 17 December 2024 to England and was arrested by the police. The mother had alleged a range of domestic abuse.

[10]He then sets out why he believes S was habitually resident in Dubai. I need not document that in any detail given it is agreed. The family lived in a three bedroom apartment of 1940 sq ft. He said Dubai was safe and supportive for S. S enjoyed swimming and spending time with his paternal grandfather (who lives with them) a cousin and his sister’s family. He was registered with a doctor and had had surgery to remove a cyst. He described S’s routine and the fact he had been offered a nursery place.

[11]In his second statement he disputed the mother’s description of him as sexist, homophobic, racist and violent. He sets out detailed protective measures. He sets out his understanding of the UAE judicial and legal system. He restates again why he considers S habitually resident in the UAE. He gives evidence that S is deeply rooted into Dubai life.

[12]He explains his welfare concerns about S being in his mother’s care. He has a negative view of the mother’s approach to education and feeding amongst other issues. He references a large scratch on S’s face and what he considers to be the mother’s inadequate explanation for it. His witness statement documents his allegations of the mother’s aggressiveness during S’s care routines.

[13]He gives detailed written evidence denying the allegations made by the mother. He denies allegations of controlling behaviour and denies allegations in respect of S. His second witness statement reiterates the domestic abuse he says he has suffered had the hands of the mother. He describes it as psychological, financial, physical, sexual and emotional abuse.

[14]He describes his indirect video contact with S and accepts it is difficult to keep a small boy engaged for 30 minutes, noting S is distracted after around ten minutes.

[15]His third witness statements explains his means. He earns £ 2 200 per month in his Dubai based employment. Additionally he receives a £ 450 - £ 665 monthly bonus. He also sells cars and his counsel told me he earns around £ 2 000 per month in this role (although this is not in evidence). His evidence is that he is able to afford all the protective measures he offers.

[16]The father is a qualified English solicitor. He explains he was employed by M Solicitors but left their employ in or around July 2021. He retains a consultancy position with them and over the last four years has earned around £ 12, 000 in this role.

[17]His fourth witness statement explains how it came to be that the mother was described as working for Etihad Airlines when she was granted her UAE residency permit. He says the listing of the airlines was purely administrative and did not imply she was employed by them. He says the visa was arranged by a third party agent.

[18]The protective measures offered are set out in his evidence as follows:a. To provide a one bedroom furnished apartment and pay six months rent in advance;

b. He will pay £ 165 towards utilities;

c. He will pay monthly child maintenance for S in the sum of £ 220;

d. He will arrange suitable temporary accommodation until the mother can rent the one bedroom flat;

e. He will pay the cost of one way flights for the mother and S to Dubai;

f. He will not institute or voluntarily support any civil or criminal proceeding arising out of S’s abduction;

g. Not to make any without notice applications before the Dubai family court pending the first on notice hearing;

h. Not to attend at the airport the day the mother and S return;

i. On the basis of no admissions, not to threaten violence, intimidate, harass or pester the mother;

j. Not to remove S from the mother’s care until further order of the UAE courts;

k. Not to contact the mother other than in relation to contact with S or urgent welfare matters and in those circumstances via an agreed communication platform;

l. Not to cancel the mother’s visa to enable her to obtain employment.

[19]Mr Bennett’s position statement sets out the following:a. Paying 3 months child maintenance, cost of utilities and house-hold expenses in advance upon arrival (I add that I am not entirely clear whether six months or three months is offered up front and exactly what this encompasses);

b. Medical insurance for the child and mother for 12 months;

c. Full payment of the mother’s visa extension for one year following any Islamic Divorce;

d. 1000 AED to seek legal advice from a UAE legal firm – the father considers that the average costs for a consultation range from 250-500 AED per consultation.

The Mother’s Evidence

[20]The mother has filed two long and repetitive witness statements. She explains the relationship with the father has broken down irretrievably. She alleges emotional, psychological, financial and sexual abuse on the part of the father. She is not in employment as she is a full time mother. She is in receipt of Universal Credit and legal aid.

[21]She explains that she reported allegations of abuse by the father to the police when she returned to the UK in December 2024. He was arrested and bail conditions were imposed that require he does not have direct or indirect contact with her. These last for three months. She explains she is proceeding with criminal charges. She explains she had to leave Dubai because she was scared and vulnerable in the face of the father’s domestic abuse. She explains the background to their Islamic marriage and states the abuse began early in the marriage. It is not necessary to overburden this judgment with all the allegations and details she sets out in her two witness statements.

[22]She details two extremely serious allegations. One when she alleges the father held a knife to her throat and the other is an allegation of rape. Mr Rustin’s position statement helpfully summarises the majority of her allegations. I quote from this as he has distilled her lengthy evidence into a short summary:

“She describes a pattern of intimidating, threatening and humiliating behaviour by F designed to frighten M and subordinate her to him: a. F threatened M with a knife and held it against her throat, which frightened M; b. There were many occasions where F would become very aggressive and throw things and slam his hand on the table to show dominance, this would frighten M. On one occasion F screamed in M’s face and told her she needed to sit down and stop thinking she has any dominance as she is not a man. F told M that he is a man and threatened her that he has strength and wouldn't take long to drop her to the ground if he pushed her; c. On 14 November 2024, F ransacked M’s drawers, threw M’s passport in her face and shouted in her face that she must take her things and leave before he ends up doing something he regrets; d. In September 2022, F had a huge argument with M and became very aggressive and shouted in her face while squeezing her hands tightly to hurt her; e. F would tell M that she needed mental help and sectioning and he threatened to call the police on her; f. On many occasions F threatened to remove [S] from M’s care; he told her that he would drag her through the court and she would not have a penny left once he was done with her. F told M that he knew the system as he did it for a living and she would have no chance. He constantly used his status as a solicitor as a means of intimidation, threatening M, saying that he will “chew her up and spit me out in a court of law”; g. F would sleep in a separate room with [S] and would not allow M to go into the room to settle him if [S] became upset; h. F would threaten and blackmail M that he would tell her family things about her that he knew she did not want them to know. He would use this against M and say he would get her in trouble with her family. He threatened M that if he told them things they would disown her; i. F would tell M that in his family married women only leave their husband’s home when they are dead, threatening harm to M if she left him; j. F would humiliate M by telling her that she was looking fat and no longer attractive anymore in front of others; k. F would monitor her interactions with his friends and family and afterward, he would insult M, call her an embarrassment and make her feel worthless; l. When M and F had disagreements, F would punish M by ignoring her for days; Further, F engaged in a pattern of controlling behaviours to subordinate and isolate M: m. F manipulated M to believe their marriage was legally recognised in the UK, effectively denying her the protection of a legal marriage; n. M lost her job because F forced her to stay in the UAE during the Covid quarantine hotel rules as he refused to pay for the cost of staying in a quarantine hotel; o. F imposed decision to move to Dubai, which isolated M from her support network; F told M that it was not her choice and he is making the decision for both of them; p. F and his family opposed the idea of M working after marriage; M was expected to cook, clean and manage the household chores and was only able to work for a short time when F knew where M would be or if it was working with somebody he knew…… q. F would have control over what M was allowed to wear; he did not allow her to wear certain clothing items unless he approved. He wouldn’t allow M to wear jeans, as they made her figure visible which would attract other men and certain tops because they were not long enough to cover M’s bottom. He demanded that she change into clothing of his choice, asserting that as her husband, she was obligated to obey him; r. M had to be at home when F came home from work. She had to have made the evening meal ready because he would be very cross if the meal was not made or ready on the table for when he arrived home; s. If F called M, she was expected to answer the phone. If she did not, he would keep ringing her and then message her and make her feel guilty for not responding straight away. F states in a message: “I’m not your mate or work colleague that you can call back in your free time. Not cool. Am I some clown?” t. F did not like M going out and would control who she was allowed to be friends with. He told her that she did not need friends and that she should prioritise him over everything; u. F did not like her speaking with her family; whenever M would be on the phone to her family, F would get agitated and give her a reason to end the call; 32. Moreover, F engaged in financially controlling and abusive behaviour towards M: v. M was wholly dependent on F financially. F gave M his debit card to use in Dubai, on which he would put a certain amount every month and monitor every transaction that M made. He would get alerts to his mobile each time the card was used and F would regularly question M about what exactly she had bought, wanting a breakdown of what M had spent and on what; w. F would not allow M to spend money on anything unless he approved; x. F refused to open M a bank account in Dubai; y. F would take cash that was gifted to M by his family or friends on occasions such as 'Eid'; z. F would take M’s wages off her when she was allowed to work for short periods.”

[23]The mother also alleges the father was abusive to S. Her evidence is that he was physically abusive by putting a foot on S’s chest; pinching his arm and slapping his thighs. These incidents took place on different occasions.

[24]She explains that she is S’s primary carer and the father worked long days 5-6 days a week.

[25]She does not agree to contact taking place without a full assessment of the father’s coercive and controlling behaviours. (Although I note Mr Rustin informed the parties and the court for the first time that she would agree to supervised contact at a contact centre in the north of England.)

[26]She details S’s family in England, which includes both grandmothers, aunts and uncles.

[27]Her second witness statement states:

“Under no circumstances do I wish for myself or my son [S] to return to the UAE due to the level of domestic abuse in form of physical, psychological, emotional, financial and sexual abuse that I have endured over the past five years of my marriage to the Applicant. I have no family, friends or any form of support system in the UAE and I am deeply concerned for our safety and well-being if it were ordered for [S] to return.”

[28]She explains her concerns about returning in respect of accommodation, uncertainty over her residence visa and her lack of employment. She is anxious about the lack of mirror orders in the UAE. She fears S may be taken to Pakistan (where the father was born). She states the father made her get a Pakistani ID earlier in their marriage.

[29]She has reservations about the safety of contact between S and the father. She fears the father being abusive towards her and is concerned about how she would be protected in the UAE. She explains why she believes she and S are habitually resident in the UK. She explains her lack of friends and family in Dubai and her lack of any connections. She explains S and her have access to the NHS in England and a general practitioner. She explains she was forced into the move to Dubai by the father and did not want to move. She says she lost all her independence there.

[30]She sets out greater detail of the domestic abuse she alleges was inflicted upon her by the father. She details the incident with the knife and the rape. She states a social worker told her the father has a history of being reported by former partners for abuse.

[31]She has filed a schedule of allegations.

Mr Allen KC’s Evidence

[32]Mr Allen KC has produced a report dated 31 March 2025. He also answered questions from the mother’s solicitor. He sets out the specific questions he was asked to report on (as approved by Mr Rees KC).

[33]He sets out the background to the UAE legal system. He states family law is in a state of flux as a new law comes into force in April 2025. He explains the new 2024 Personal Status Code which comes into force on 15 April 2025. It will apply to Muslins, Emiratis and residents of the UAE. Default custody provisions will be repealed (e.g. the mother having custody for boys under the age of 11). The new law does not require both parents to agree on overseas travel for periods of up to 60 days but the court can set restrictions on this. He notes the parties could ask that another substantive law applies, such as English law but such a decision would be for the UAE courts. He says outcomes are likely to be the same. He explains the difference between custodians and guardians and notes children will normally reside with their mother but the court can make best interests decisions overriding this. He states in general terms the law supports children having contact with both parents unless there is a good reason to deny contact.

[34]He explains the criminal sanction for child abduction. He sets out the law on domestic violence which came into force on 16 September 2024 which encompasses psychological, sexual or economic abuse and provides for restraining orders. The UAE court can bar a parent leaving the country with a child. UK orders are not recognised in the UAE but can be submitted to be considered. There is no formal process to obtain mirror orders. The UAE is a signatory to the UN Convention on the Rights of Children.

[35]In answer to the specific questions, Mr Allen KC says the following. Child relocation can be the subject of a Dubai court application as it can be in the UK. A disputed relocation case might take around a year to resolve. The factors relevant would include consideration of similar issues as ‘UK’ courts. He explains the Dubai court would approach best interests as a ‘UK’ court would but in the cultural context of Dubai. He says more weight might be given to preserving a child’s religion or in respect of questions of remarriage. Domestic abuse would be considered. He states it would be ‘very unusual’ for a Muslim father to be given custody of a Muslim boy under eleven. He explains the new Law 13 of 2024 on domestic abuse. He notes both parties can make applications for contact orders before the Dubai courts with the court determining this on the basis of the child’s best interests, set within the cultural context of the UAE. A lengthy contested application over relocation could cost tens of thousands of pounds. Mr Allen KC answers a question about coercive and controlling behaviour and concludes the new law of 2014 is wide enough such that the definition of abuse should cover this. He sets out the likely contents of a domestic abuse order.

The Law

[36]The law is this area is well established. S’s welfare is my paramount consideration. This is clearly set out by Lady Hale giving the decision in Re J (A Child) (Child Returned Abroad: Convention Rights)

[2005] UKHL 40

;

[2006] 1 AC 80

. She held as follows: a) “… any court which is determining any question with respect to the upbringing of a child has had a statutory duty to regard the welfare of the child as its paramount consideration” [18]; b) “There is no warrant, either in statute or authority, for the principles of The Hague Convention to be extended to countries which are not parties to it” [22]; c) “…in all non-Convention cases, the courts have consistently held that they must act in accordance with the welfare of the individual child. If they do decide to return the child, that is because it is in his best interests to do so, not because the welfare principle has been superseded by some other consideration.” [25]; d) “… the court does have power, in accordance with the welfare principle, to order the immediate return of a child to a foreign jurisdiction without conducting a full investigation of the merits. In a series of cases during the 1960s, these came to be known as 'kidnapping' cases.” [26]; e) “Summary return should not be the automatic reaction to any and every unauthorised taking or keeping a child from his home country. On the other hand, summary return may very well be in the best interests of the individual child” [28]; f) “… focus has to be on the individual child in the particular circumstances of the case” [29]; g) vii) “… the judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that proposition will vary enormously from case to case. What may be best for him in the long run may be different from what will be best for him in the short run. It should not be assumed, in this or any other case, that allowing a child to remain here while his future is decided here inevitably means that he will remain here for ever” [32]; h) “One important variable … is the degree of connection of the child with each country. This is not to apply what has become the technical concept of habitual residence, but to ask in a common sense way with which country the child has the closer connection. What is his 'home' country? Factors such as his nationality, where he has lived for most of his life, his first language, his race or ethnicity, his religion, his culture, and his education so far will all come into this” [33]; i) “Another closely related factor will be the length of time he has spent in each country. Uprooting a child from one environment and bringing him to a completely unfamiliar one, especially if this has been done clandestinely, may well not be in his best interests” [34]; j) “A child may be deeply unhappy about being recruited to one side in a parental battle. But if he is already familiar with this country, has been here for some time without objection, it may be less disruptive for him to remain a little while longer while his medium and longer term future is decide than it would be to return.” [34] k) “In a case where the choice lies between deciding the question here or deciding it in a foreign country, differences between the legal systems cannot be irrelevant. But their relevance will depend upon the facts of the individual case. If there is a genuine issue between the parents as to whether it is in the best interests of the child to live in this country or elsewhere, it must be relevant whether that issue is capable of being tried in the courts of the country to which he is to be returned” [39]; l) “The effect of the decision upon the child's primary carer must also be relevant, although again not decisive.” [40]

[37]Lord Wilson further considered the correct approach of the trial judge in a non-Hague case in Re NY (A Child)

[2019] UKSC 49

;

[2020] AC 665

. He set out questions that the first instance judge should “at least give some consideration to” at paragraphs 56 – 63. Cobb J helpfully summarised these at paragraph 38 of J v J (Return to Non-Hague Convention Country)

[2021] EWHC 2412 (Fam)

as follows:

“i) The court needs to consider whether the evidence before it is sufficiently up to date to enable it then to make the summary order ([56]); ii) The court ought to consider the evidence and decide what if any findings it should make in order for the court to justify the summary order (esp. in relation to the child's habitual residence) ([57]); iii) 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; a decision has to be taken on the individual facts as to how extensive that inquiry should be ([58]); iv) In a case where domestic abuse is alleged, the court should consider whether in the light of Practice Direction 12J, an inquiry should be conducted into the disputed allegations made by one party of domestic abuse and, if so, how extensive that inquiry should be ([59]); v) The court should consider whether it would be right to determine the summary return on the basis of welfare without at least rudimentary evidence about basic living arrangements for the child and carer ([60]); vi) The court should consider whether it would benefit from oral evidence ([61]) and if so to what extent; vii) The court should consider whether to obtain a Cafcass report ([62]): "and, if so, upon what aspects and to what extent"; viii) The court should consider whether it needs to make a comparison of the respective judicial systems in the competing countries – having regard to the speed with which the courts will be able to resolve matters, and whether there is an effective relocation jurisdiction in the other court ([63]).”

[38]Mr Rustin also draws my attention to Re A and B (Children) (Summary Return: Non-Convention State)

[2022] EWCA Civ 1664

. The Court of Appeal endorsed this approach taken by Poole J at first instance in a case about assessing future risk of harm in an application involving a non-Hague country (in fact the UAE). Moylan LJ (with the agreement of Peter Jackson and Warby LJJ) set out the following:

“81. I first deal with the submission that the judge's decision was flawed because, as part of his analysis, when considering "the risks to the children in the context of a return to E", he adopted the Re E approach to the assessment of those risks. In my view, the judge was entitled to use this approach. He was, as Peter Jackson LJ observed during the hearing, doing no more than evaluating the evidence to consider the maximum level of risk. He could have done this as part of his analysis without referring to Re E and no objection could have been taken.”

[39]Moylan LJ concluded:

"In summary, the court's decision is a welfare determination and must give paramount consideration to the welfare of each child as required by section 1(1) of the CA 1989. The court has to decide the extent to which it needs to investigate the facts of the case, including by holding a fact-finding hearing, in order properly to determine what order is in a child's best interests. The court needs to consider all relevant factors, including PD 12J, when determining whether a summary determination is sufficient and what order to make."

[40]I have also reminded myself of Practice Direction 12J of the Family Procedure Rules.

Analysis

[41]S’s welfare is the court’s paramount consideration. The parties agree he was habitually resident in the UAE on 2 December 2024, when his mother brought him to Manchester. From birth until 2 December 2024, S spent 237 days in the UK compared with 304 days in the UAE. From birth until 9 April 2024 he has spent 365 days in the UK compared to 304 days in the UAE. S is a British citizen. S was born in the United Kingdom. Both his parents are British citizens who were brought up in the United Kingdom (albeit his father was born and lived briefly in Pakistan). In as much as it is necessary to determine in a common sense way, as Lady Hale suggests, what is S’s home country - the choice is between the UK and the UAE. As of April 2025 more factors point to the UK being his ‘home’ country over the UAE, notwithstanding his habitual residence there on 2 December 2024.

[42]There is no dispute I have jurisdiction to order the summary return of S to the UAE to permit the courts in that jurisdiction to determine the medium and long term future of S. Whether S is returned on a summary basis or whether there needs to be a fuller assessment of whether he should be returned is a decision rooted in an assessment of where S’s best interests lie today. I must focus on S as an individual and the individual circumstances that pertain to him having regard to all relevant welfare factors. There is no basis for my assessment to import any of the policy objectives of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, hereafter the "1980 Hague Convention" in circumstances where the UAE is not a signatory to that treaty. I have heard no submissions on the issue, but it may well be the case the return order application would have been determined differently if the UAE were a signatory to the 1980 Hague Convention. Modern parents are aware of these issues when they choose to live and work in overseas countries.

[43]Mr Bennett submits S was habitually resident and settled in Dubai. His life was there. He was unlawfully retained and the removal was carried out with deception. He submits I should accept such an unplanned move is harmful. He submits S has a greater degree of connection with Dubai than the UK. He relies on Mr Allen’s expert evidence that Dubai operates a fully functioning and well-resourced court system which both parties can access. That jurisdiction operates a best interests approach within the cultural context of the UAE. I am reminded the UAE is a signatory to the UN Convention On the Rights of the Child. The court can make relocation decisions for children. He submits that in the context of the father’s protective measures, the mother can return with S in a safe manner. He reminds me there is no medical evidence that the mother’s physical or mental health would be impaired by a return to Dubai. She is a qualified teacher and can obtain employment. The father will pay for six months accommodation and this can be paid up front and made a condition of the return order. He submits that whilst the father denies the allegations of abuse made against him, once evaluated (and he invites me to evaluate the allegations and find some of them unlikely) the court should consider the maximum amount of risk. He submits that when the risks to S are then identified, the father’s protective measures mean the mother “will be insulated from any alleged risks of coercive control or other behaviours.” This will prevent the mother and father coming into contact. He submits her immigration status will be secure. He particularly submits the three allegations of child abuse perpetrated by the father against S cannot be taken at their highest because of the contemporaneous documentation which demonstrates the mother’s inconsistencies. The last paragraph of his skeleton argument sets out his submissions based on the welfare checklist.

[44]Mr Rustin’s submissions focus on the relative situations S would find himself in if he remains in this jurisdiction for a fuller welfare evaluation if the summary return is refused, in comparison with acceding to the application and the situation where S is shortly returned to Dubai. He submits the mother’s situation would be unstable from the perspective of her employment, immigration, housing and financial situations. He submits the mother would be very isolated with no friends or family in Dubai. She would have no assistance with caring for S. This would add to her stress and anxiety which would impact on S. All of this taken together, it is said, would substantially negatively impact on S’s welfare. He contrasts this with the mother’s stable housing situation and stable financial position with Universal Credit in England. Next it is submitted S has very considerable familiarity with life in the UK. In this context, I asked when S began speaking. Mr Rustin stated S had a few words at fifteen months and began speaking in sentences at 19-20 months. Mr Rustin submits S would be returning to a very unfamiliar environment in Dubai. He submits the father’s proposal is that the mother and S should return and be housed in temporary accommodation until such time as a new rental home is obtained. That would involve three different homes in as many months. S would not be returning to the former family home. Further, Mr Rustin submits that contact can be better advanced with the supportive framework of supervising family and friends who are in England and with a supervised contact centre in England. He states this would be more meaningful given the context of the mother’s lack of support in Dubai, having regard to the bail conditions. This would be beneficial to S’s welfare. Mr Rustin submitted that the mother’s access to the Dubai courts will be difficult and that the reference to the ‘cultural context’ of the UAE courts’ legal assessment of best interests would likely import the mother’s obedience to the child’s guardian – the father. He also submits that she has no funds to fund the relocation litigation, does not speak Arabic and has no funds to cover the costs of the interpretation and translation of documents. He submits the protective measures are of limited real value, there can be no mirror order and the UAE courts will not recognise an order from this court. This he submits leaves the mother, who it is said to be a victim of prolonged domestic abuse, vulnerable in the hands of the father and completely dependent upon him, whilst very isolated in the UAE, all of which will seriously negatively impact on S, to the detriment of his wellbeing.

[45]I have determined the summary return of S to the UAE is inconsistent with his best interests for the following combined reasons:

[46]First, it is overwhelmingly in S’s best interests for the allegations of serious domestic abuse to be determined promptly to allow for welfare based decisions to be made for him. In my judgment, on the particular facts of this case, this can more speedily happen in the courts of England and Wales, because: a) There are existing proceedings with detailed witness statements, some disclosure and a schedule of allegations; b) All parties speak English and no documents needs to be translated; c) There are 750 plus pages of documents for this summary return application, much of them will require to be translated into Arabic which will be time consuming; d) The mother has legal aid and will have legal aid for a contested child arrangements order application involving allegations of domestic abuse and the father’s own case is that he has funds - two legally represented parties will be able to make faster progress; e) The father offers only very little funds as a protective measure for the mother’s legal fees in Dubai; it follows therefore that she would need to act as a litigant in person (in circumstances where she does not speak Arabic) or obtain employment first and then fund lawyers, translators and interpretation – this will take time; f) The mother needs to move to Dubai, move into temporary accommodation and then move into a rented apartment – this will add further up front delay – it seems unreasonable to expect her to fully engage in litigation until she has settled; g) I do not discount the delays resolving private law matters in this jurisdiction and I note Mr Allen KC’s evidence that the Dubai courts are well resourced, but overall it is my assessment resolving disputed facts will take place more speedily in England Wales. This is plainly in S’s best interests.

[47]Secondly, without resolving the disputed allegations of domestic abuse, but assessing the risk of harm at its highest, I am not satisfied the father’s protective measures will ensure S’s wellbeing is not negatively impacted. I am particularly concerned that there is little effective means to shield S from the fallout of his mother’s anxiety, isolation and fear if returned to Dubai. I do not need medical evidence to make that determination. I have the following issues in mind: i) Whilst the mother does not state she will not return to the UAE, I accept her written evidence that she will feel isolated, alone, fearful and anxious. I have little doubt her communicative son will be aware of this and be negatively impacted; ii) The mother has no support network and therefore will find herself left to care for her son without the current support she receives from her mother, her sister and brother. S’s welfare will be harmed by this. Whilst I make no findings, I accept her evidence she is not trusting of the father’s family who are present in the UAE. The mother is S’s primary carer and she needs assistance to effectively provide for his needs – this will happen much more effectively in England than the UAE; iii) Even if I make the return order conditional on advance payment of the monies the father undertakes to provide, the mother will be highly dependent upon him in circumstances where she alleges coercive and controlling behaviour and various forms of serious abuse. This places her in a vulnerable situation and may be considered oppressive. This is not conducive to S’s welfare. iv) No order of this court is enforceable in Dubai without application and order of the UAE courts. No mirror order can be obtained. It follows that many of the protective measures may not be enforceable; and making the return order conditional on payment of money pre-return cannot resolve the enforceability of many of the protective measures offered, even if solemnised into undertakings to this court; v) Whilst I make no negative assessment of the father in his role as a solicitor of the Senior Courts of England Wales, I cannot place the weight Mr Bennett asks to put on this factor to ensure compliance with undertakings in circumstances where the father’s Dubai earnings dwarf the £ 3000 per year or so earnings he makes.

[48]Thirdly, a return order would result in S facing very considerable disruption. There could be distinct negatives for S’s wellbeing brought about by the change of circumstances occasioned by the summary return order. I have in mind: i) S would not return to the former matrimonial home, ii) S would be required to leave his current home, live in temporary short term rental accommodation and then move into another longer term rental home - this is not consistent with the stability and certainty this young toddler needs; iii) On the father’s case the mother would need to be in employment when she returns (to at least fund her legal expenses) and this would mean S would be deprived of his current care arrangements and would be placed in some as yet unknown day care. This is also inconsistent with his current welfare needs where he is looked after by his mother and other close family members who know him well and can meet his needs.

[49]Fourthly, as I have stated above, on balance, the UK is S’s home country. In my judgement, it therefore follows that there are plain welfare benefits to S of the English courts resolving his welfare needs. Whilst ordinarily, much greater weight would be given to the stability of a return to the country of habitual residence, with this very young child and the almost equal amount of time he has spent in both jurisdictions, his habitual residence on 2 December 2024 is a factor to which I afford weight, but less weight than in other circumstances. Furthermore, the last four and half months of S’s short life will have involved him at his most interactive, curious and communicative. That has taken place in England. I consider his retention in December was wrongful and unlawful and I approach post 2 December 2024 factors with caution. I accept unlawful retention of children must not be encouraged by the courts. All of that being said, I must carry out a welfare assessment of S and his individual circumstances now. If this seems unfair on the father, then it is important to state that S’s best interests come first and the paramountcy of his welfare takes precedence.

[50]Fifthly, I have not overlooked and nor do I disagree with Mr Allen’s assessment of the well-resourced Dubai court carrying out welfare assessments based on the best interests of the child in the cultural context of the UAE. I find, however, that there are very real practical challenges for the mother accessing legal representation. This barrier must be taken together with the difficulty of funding translation and interpretation. Without these, her ability to fully access justice is more likely than not to be compromised. It is not consistent with resolving S’s welfare that one party is prejudiced and cannot fully participate. The father’s protective measure of offering 1000 AED cannot overcome this. The alternative of the mother requiring to find employment creates significant delays but also comes with disadvantages to S’s daily welfare needs, as I have set out above;

[51]Sixthly, on both parties’ written evidence this was an abusive relationship. Whether both are telling the truth or neither, is a matter that will soon be resolved. However, taking their respective written evidence on face value, S is likely to have been harmed by the domestic abuse conducted, at times, in his presence. Refusing the summary return pauses that harm for now.

[52]Lastly, by refusing a summary return I do not consider any part of the welfare checklist has not been taken into account, although I have not mentioned every factor. In particular, at this stage I find that it is more likely video contact and in person supervised contact between S and his father can take place in England. This is in circumstances where the mother has a support system of family and friends in place here in England. The father can visit England and the mother now, albeit belatedly, offers supervised contact at a contact centre. This provides a mechanism for S continuing his relationship with his father, consistent with the bail conditions, until such time as the domestic abuse allegations can be determined.

Conclusion

[53]This is one of those cases where: …..it may be less disruptive for [a child] to remain a little while longer while his medium and longer term future is decided than it would be to return.

[54]Should S be returned to Dubai summarily and the family court there found the allegations of domestic abuse proven, the welfare case for S’s return and relocation to England would be strong, on the basis of my understanding of Mr Allen KC’s evidence. But if that were to happen it would involve further unsettling transitions in the life of this young boy. The least disruptive route is for S to ‘remain a little longer’ whilst the relocation issue is fully and not summarily evaluated. Meanwhile the father and S can develop contact remotely and in person at a supervised contact centre, as the mother has belatedly agreed. Whilst the father has a limited number of days when he can be in this country, I am confident he will come to spend time with his son.

[55]For all these reasons a summary return order is not in S’s best interests. I will hear the parties’ submissions to expedite the determination of a child arrangements order and specific issue order at the hand down.

[56]I thank both counsel for their skilful submissions and ask they draft an order to give effect to this decision.