It is not unusual in a domestic private law children case to be faced with a scenario where:
(i) prior to any proceedings commencing, one parent decamps with the child to another part of the country which, however far from the left behind parent, significantly impacts upon his or her ability to spend time with their child; and
(ii) by the time the matter gets to court, the move, from a welfare perspective, is effectively a fait accompli.
In such circumstances, the emotional angst for the left behind parent, and the tactical tension for their lawyer, is clearly understandable. Does he or she adopt a conciliatory approach, seeking to avoid court proceedings but leaving a risk that the longer the child remains in the new environment, the more likely it is that the child becomes settled and integrated? Or does he or she bring the matter to court urgently, achieving a rapid restoration of the status quo, but at the risk of seriously escalating tension within the family?
There are two broad versions of this scenario which need to be distinguished from one another. The first is where the parent who has moved away has, up until the time of the move, had the child living with him or her, such that – as a matter of fact – that parent has been the primary carer of the child. Into the same category will go any case where there has been some passage of time since the move, by which we mean anything more than a few days. The second version of the scenario is where the parent who has moved has effectively removed the child from the primary carer’s day-to-day care and that parent is (to use international abduction language) in ‘hot pursuit’, within a matter of days. Here, the ‘move’ may not be geographically very far at all, and it is the effect on the child’s daily life which is of significance.
The primary focus of this short article is on ‘abductions’ that take place within England and Wales. It does not consider remedies that might be sought in an intra UK case, where the Family Law Act 1986 or the inherent jurisdiction might be relied upon to bring about a speedy return.
Primary carer abductions
The issue of whether English law recognises some special category of ‘internal child abductions’ was addressed by the Court of Appeal in Re R (Internal Abduction)  EWCA Civ 1016. Here, the facts were as follows. The parents had been living in Kent, but following their separation the mother moved with the young child, without the father’s knowledge or consent, to the North West of England where her family lived. The father sought to have the child returned to Kent for the issue of child arrangements to be adjudicated there.
The mother had left on 11 January and the matter came before the court, on the mother’s application and the father’s cross-application, on 5 February; the district judge refused the application for a summary return of the child to Kent having conducted a summary welfare assessment. That decision was upheld by a circuit judge on appeal, and then by the Court of Appeal. Giving judgment in the Court of Appeal, Black LJ rejected the suggestion that there should be any kind of presumption of return in such cases, saying that the test was welfare and that any additional ‘tests’ would be unhelpful.
Black LJ summarised the approach at para 27 of her judgment:
“In short, in a domestic abduction case, as in a non-Convention international abduction case, the judge must derive the answer by applying section 1(1) of the Children Act to the particular facts of the case before him, having regard to all the relevant features, including the matters listed in section 1(3) (whether because the circumstances are within section 1(4) of the Act or otherwise by analogy).”
So, although a judge is entitled in an appropriate case to approach this welfare assessment in a summary manner (without waiting for full statements or a Cafcass report, for example, if there is other evidence before the judge which gives enough information to make the interim decision about return or otherwise), there are no presumptions or glosses on the welfare enquiry.
In this context, therefore, a parent and his or her lawyers will be well advised to move as quickly as possible, and to request an urgent hearing to address the welfare issues on a summary basis, but the matter is not ‘urgent’ in the sense of justifying an out of hours or without notice application.
Removals from the primary carer
A somewhat different approach is possible in cases where the child has been summarily removed from the care of the primary carer by the other parent (or someone else). Parents in this situation often seek recourse to the police, but often to no great effect unless the child is in immediate danger; particularly if the other parent has parental responsibility for the child and there is no court order in force determining child arrangements, the police are usually reluctant to interfere.
However, if the parent moves quickly enough, it is possible to seek what is termed a ‘peremptory return’ of the child, which is to say an order for immediate return to restore the status quo prior to a final determination. The key authority for this is the little deployed judgment of the Court of Appeal in Re R (Children: Peremptory Return)  EWCA Civ 558,  2 FLR 863.
That case concerned two boys who were aged 9 and 7 who were living with their father on the Isle of Wight. He did not have parental responsibility but had applied for it to be granted to him, along with a residence order. Shortly after he had made those applications, the mother took the younger of the two boys to live with her in Dorset. An initial (directions) hearing on the father’s applications (for parental responsibility and residence) took place one week after the removal. Thereafter, the proceedings progressed slowly over a number of months, eventually arriving – through a finding of fact hearing and various other hearings – in the Court of Appeal about six months after the mother’s initial removal of the child.
In considering the history of the case, Thorpe LJ identified a cardinal error: a failure to make an immediate application for an order for “peremptory return”. As he said at paragraph 15:
“What ought to have happened in this case, as in every case in which a child is seemingly wrongfully removed from a primary carer without consultation or consent and without apparent justification, is an application without notice to the available court on the same day or on the evening of that day or on the earliest available opportunity the next day. A judge is always available in the Family Division to receive and rule upon such an application. We are told that similarly a judge is always available in the Portsmouth County Court at least during court office hours.”
At paragraph 22, Thorpe LJ went on to conclude as follows:
“So the lesson to be learnt from this case is:
(1) that seemingly unlawful removal of a child from the home of a primary carer ordinarily speaking calls for a peremptory order for return;
(2) any application for a peremptory return order must be issued at once to a court which has the facility to offer a 24-hour service, or at least a service on every court sitting day, for the issue of an immediate order on a without notice basis and for accommodating the necessary inter partes hearing within days thereafter;
(3) if there is no such application issued and the court is not engaged for peremptory return order, but weeks are allowed to pass between the date of removal and the date of any judicial investigation or determination, then the ordinary rule is unlikely to be equally applicable… “
In order for reliance upon Re R (Children: Peremptory Return) to be effective, it is therefore suggested that:
(i) There should be no safeguarding issues in the case;
(ii) An application should be made rapidly (i.e. within 24-48 hours if possible, or as quickly after the removal as is possible) to the urgent applications judge of the appropriate Family Court or the Family Division of the High Court; and
(iii) It should be clear that the applicant is either the primary carer, or a parent who is obviously sharing care of the child.
If the court is not minded to grant an order, an alternative position might be to seek an on notice return date hearing in no more than circa 48 hours.
In the right circumstances, Re R (Children: Peremptory Return) can be a very useful authority that provides a willing court with the legal basis it needs to make an immediate return order. However, it should be deployed with care, supported, of course, by detailed and accurate evidence (about which, see Re A (A child)  EWCA Civ 572,  4 WLR 111), and having overall regard to the usual welfare framework.
The authors have recent experience of making successful applications using Re R (Children: Peremptory Return). One involved the following facts. The parents had separated six months earlier in circumstances of significant domestic violence; the father was criminally convicted and given community service, with a two-year restraining order in place. The child, who was 11, was living with the mother. On a Wednesday afternoon, the child went home with friends from school and then to a local youth centre. When called by the mother to return home for dinner, he reported that he was with his father and would not be coming home.
The mother called the police, who attended the father’s property, but he was not there. From there, though, the police response was simply that the father had parental responsibility and no court orders were in force regarding the child. The child did not attend at school the next day, when the mother was in touch with social services, who took a similar view to the police. On the Friday, the mother went to a solicitor for advice. The solicitor contacted counsel at around 5.15pm, and counsel advised on the basis of Re R (Children: Peremptory Return) that an application should be made as soon as possible.
The solicitor prepared a draft statement setting out the history and immediate circumstances. This statement, together with a copy of Re R and a draft order, was then sent to the High Court out of hours contact, in compliance with Practice Direction 12E – Urgent Business. The application was brought without notice to the father because his location was unknown and there was a risk of onward abduction, but also because of risk of harm to the child given the particular history of domestic violence in that case. A telephone hearing with MacDonald J took place at around 8.30pm, which resulted in the order being made together with a Collection Order requiring the Tipstaff to locate the child and return him forthwith to the care of the mother. This order was executed the next day, once the father had been located at his partner’s property in another part of the country.
For Re R (Children: Peremptory Return) to be used successfully, speed is of the essence. Thorpe LJ’s judgment envisages an application within 24-48 hours, though it may be that this could be stretched a little if there were both good reason for the delay and evidence that supported the need for an urgent return in the child’s welfare. The court also needs to be confident that the order sought will truly restore the child’s status quo of care with the applicant, and applicants should be cautious about trying to make use of this authority outside its paradigmatic facts.