ABSTRACT
In respect of abduction, the question arises as to how an English court should respond in those cases where a State is not a party to either the Hague Convention or the European Convention. One approach would be to apply the general presumption in favour of return contained in the Conventions; the other possibility would be to continue with the common law emphasis on the welfare of the child. It as to be admitted that the courts have fluctuated between these two principles. At first, the courts tended to proceed by analogy with the provisions of the Convention.198 However, the Court of Appeal has now ruled that the welfare principle should prevail. In Re A,199 the Court of Appeal upheld the refusal of Singer J to order the return of a child to the United Arab Emirates. In giving judgment in the Court of Appeal, Ward LJ ruled that, where return is being sought to a non-convention country, then the English court would need to be satisfied that the child’s welfare would be fully protected by the courts of a foreign country and that, in so far as doubt might have been cast upon this principle in Re M,200 then those remarks required qualification.
