by Jeremy D. Morley

A court in England has refused to order the summary return to China of a child abducted from that country because of expert evidence concerning the laws and procedures of China in cross-border child custody cases. E v O [2025] EWHC 500 (Fam). 

The married parties, a Chinese mother and an English father, lived with the child in China. The father covertly removed that 2-year-old daughter from their home after suspecting that the mother was having an affair and brought the child to England. The mother applied for the child to be summarily returned to China.

The court stated that the welfare (best interests) of the child is the paramount consideration in applications for summary return orders to non-Hague Abduction Convention countries and that there is no authority in England to extend the Convention's principles to countries which are not parties to it.

It explained that the court had the power, in accordance with the welfare principle, to order the immediate return of the child to a foreign jurisdiction without conducting a full investigation of the merits. Summary return should not be the automatic reaction to any and every unauthorized taking or keeping a child from his home country, but may very well be in the best interests of the individual child. The focus must be on the individual child in the circumstances of the case.

The judge stated that it may be “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,” but that will depend on the facts of the case. 

She specifically held that, in a case where the choice lies between deciding the question in England or in a foreign country, differences between the legal systems are relevant, albeit the extent to which that is so will vary from case to case. In a case in which there was a genuine issue between the parents as to whether it is in the best interests of the child to live in England or elsewhere, “it must be relevant” whether that issue is capable of being tried in the courts of the country to which he is being returned. 

The court appointed a single joint expert on Chinese law. In his report, the expert stated that he did not believe any court in China would make an order permitting a parent to remove a child from China unless both parents agreed; that Chinese courts cannot order joint custody or shared care; that it is not possible in practice for cross-border contact to be enforced by the Chinese courts; and that an English order cannot be recognized in China. 

Counsel for the father further submitted that there was evidence that the attitude of the Chinese courts to fathers is discriminatory, and that, since the Chinese courts had no ability to recognize English orders, there could be no legally enforceable safeguards as to the child's care, in a situation where welfare proceedings in China might take 6 to 12 months.

The judge expressed particular concern about the expert evidence that the courts in China did not appear to make decisions allowing relocation back to England in the absence of parental agreement, and also as to the ability of the Chinese courts to enforce cross border contact.

In light of that evidence, the judge ruled that, despite her considerable concern at the way in which the little girl of only two was removed from her home and mother, it was not in the child's best interests to be returned to China on a summary basis for welfare decisions to be taken there.