What happens when a child is brought to England from abroad without the other parent’s consent, but the country they’ve come from isn’t part of any formal international agreement? That was the question at the heart of Re O (Summary Return: Non-Convention Country) [2025] EWCA Civ 660 – a case involving two children taken from Nigeria to England by their mother, triggering urgent legal action by the father, who sought their return.
Nigeria isn’t a party to the 1980 Hague Convention, which is the usual mechanism that allows for the swift return of children wrongfully removed across borders. But without that framework in place to guide proceedings, the English courts have to fall back on their own powers and principles, relying on the broader discretion available under the court’s inherent jurisdiction.
Here, this led to an order requiring the children to return to Nigeria, and to a further appeal from the mother, that raised a critical point of law – how should English courts approach cases like this when international rules fall silent?
The High Court case
During the initial hearing, the High Court found that the removal of the children was wrongful and that it was in their best interests to be returned back to Nigeria, where they had enjoyed a settled life before their abrupt relocation. The judge made that decision under the court’s inherent jurisdiction, weighing the children’s welfare without relying on the structure of the Hague Convention, which didn’t apply.
But the mother challenged the outcome, arguing that the judge had nonetheless allowed Hague principles to creep in, particularly by focusing on “habitual residence” as if it were determinative.
She claimed that in doing so, the court had strayed from the kind of welfare-led analysis required in a non-Convention case. The appeal invited the Court of Appeal to clarify what role, if any, concepts like habitual residence should play when the international framework doesn’t apply.
The Court of Appeal
On appeal, the Court of Appeal upheld the decision to return the children, but took the opportunity to restate the correct legal framework for cases of this kind. Where the Hague Convention does not apply, as is the case when children are taken from non-Convention countries, the courts must fall back on their inherent jurisdiction. That jurisdiction, the Court emphasised, is not constrained by the Hague framework and is instead rooted in the court’s broader responsibility to act in the best interests of the child.
The Court confirmed that habitual residence, while not determinative, remains a relevant factor. It can assist the court in assessing the child’s connections, their stability and the reality of their family life prior to the move. But it is not the test. In non-Convention cases, there is no presumption in favour of return. The court’s task is a broader and more nuanced one: to consider all the circumstances and to decide what outcome serves the child’s welfare.
Welfare as the paramount consideration
This case underscores that, in the absence of an international treaty framework, English courts retain a wide discretion to act in the child’s best interests. The decision confirms that the child’s welfare is not just a consideration – it is the paramount consideration. The High Court had not erred by weighing the impact of relocation, the children’s ties to Nigeria, and the practical realities of their care arrangements. Nor had it misdirected itself by referring to habitual residence as one of many contextual factors.
What emerges from Re O is a careful judicial balancing act. The courts are not bound to return a child simply because their removal was unauthorised. Nor are they required to treat non-Hague cases as if they were mirror images of Hague proceedings. Instead, they must assess the facts with fresh eyes – asking what outcome will best serve the welfare of the child, not what outcome fits a predetermined model.
Why this matters
Re O will be of particular interest to practitioners advising in cross-border family disputes where one parent has unilaterally removed a child to England from a non-Convention state. It offers reassurance that the English courts have both the jurisdiction and the inclination to consider such cases swiftly and fairly, even in the absence of a formal treaty route. It also makes clear that while the procedural shortcuts of the Hague Convention are unavailable, the courts will not hesitate to order a child’s return where it is right to do so.
In practice, lawyers advising parents (whether seeking return or resisting it) will need to prepare detailed evidence on the child’s welfare, family life, and educational, emotional and cultural ties to both countries. The court’s focus will be on the child’s real-world circumstances, not legal formalities. And while the views of older children may carry weight, particularly in relocation cases, it is the court’s assessment of welfare that remains decisive.
