International Children Law: Parental Abduction Between England & Wales And Mainland China
International child abduction law is especially complex when it involves a country that is not a party to the 1980 Hague Convention (“the Convention”).
The Convention (to which the UK is a party) provides a swift summary return process when one parent takes their child out of a jurisdiction without the other parent’s consent. This is subject to narrow defences (such as that returning the child to the jurisdiction would expose them to a grave risk of physical or psychological harm).
However, the Convention only works if both the jurisdictions involved are parties (or part of a state that is a party). What happens when one jurisdiction isn’t?
Hodge Jones & Allen Solicitors acted in one such reported High Court case: E v O [2025] EWHC 500 (Fam). Below, we review the case, how we tackled it, and the key takeaways for expatriate Britons living in China and other non-Convention countries.
What were the facts of E v O?
Our client was a British man who was living and working in China (specifically Mainland China rather than Hong Kong or Macau) on a series of visas. He and his wife, a Chinese national, had a daughter, who was 2 years old at the time of judgment.
Very briefly, the relationship broke down, and the circumstances of the breakdown meant our client felt he had no choice but to leave China and to take his daughter with him.
The mother subsequently launched court proceedings in England & Wales seeking a summary return of their daughter to China.
What is the law in this situation?
If China were a Convention country, the mother could have applied under the summary return process to return the child to China. As China is not a Convention signatory, she instead applied under the Inherent Jurisdiction of the High Court. The Inherent Jurisdiction gives the High Court the power to make decisions in various family matters where there is no applicable legislation that otherwise directs what should happen.
The first priority when the High Court is considering using its Inherent Jurisdiction in such cases is the welfare of the child (the welfare principle). This might be served by returning the child swiftly to their country of habitual residence; equally, it might not.
Which country is best suited to make welfare decisions
When considering the summary return of a child, consideration should be given to which country is best placed to make welfare decisions for that child.
In our case, we needed to understand how a Mainland Chinese court would assess welfare and make decisions as to the arrangements for the child (including who that child should live with, the time they spend with each parent, how a relocation application would be approached and enforceability considerations).
To determine these points, the instruction of a single joint expert in Mainland Chinese family law was agreed.
The expert advised that Mainland Chinese family law is similar to English & Welsh family law insofar as it centres its decisions around the best interests of the child as its paramount principle.
However, child custody proceedings on divorce in Mainland China may not always work in a way that, from an English & Welsh view, in fact centres around the best interests of children.
By way of example, when determining child custody, Mainland Chinese courts may take into account factors such as whether one parent has other children, or whether the other parent could have further children. The latter would be, in England & Wales, irrelevant to deciding what is in the child’s best interests.
Further, it is the norm in Mainland China to award custody of children to one parent. While the non-custodial parent will have visitation rights, these are weakly enforced.
Finally, and perhaps crucially, we were advised that Mainland Chinese courts are very unlikely to entertain an application to relocate a child in China to outside of China. The expert could name one case where this had occurred, and that case concerned a dispute over the timing of relocation rather than whether relocation should occur.
Cumulatively, this meant:
- If the child remained in England & Wales, the English & Welsh courts would be robust in enforcing access to the child for both parents; but
- If the child returned to Mainland China, there was a risk that the courts there would not enforce both parents’ abilities to have a relationship with the child.
The result
The court was persuaded by our arguments that a summary return would not be in the best interests of the child because:
- To return the child would be to determine welfare issues because it would effectively determine the question of who she should live with forever, and favour the mother. Instead, there should be full child arrangements proceedings to decide on her long-term care.
- Even if an order was made for contact with the father, there would be weak enforcement of it.
- If a relocation to England would be in the overall best interests of the child, that would not be considered as an option in court proceedings in Mainland China.
Implications and next steps
If you are an English & Welsh parent living with a local spouse in a non-Convention country, you may be at a significant disadvantage in retaining access to your child in the event of relationship breakdown.
Early legal advice to map out each party’s potential position in each jurisdiction is essential.
Our expert international child law solicitors are here to help, and we maintain links with family lawyers in a variety of other jurisdictions, including Mainland China, who can provide coordinated advice and action within the local legal framework. If you would like to know more, please call 0330 822 3451.
We offer flexible meeting arrangements at our offices in Central London, Wandsworth, Stratford and Orpington, and can accommodate your needs at a location and time that is most convenient for you. Our team is happy to discuss your requirements and arrange an appointment to suit your circumstances.
Please note that the family law team at Hodge Jones & Allen does not hold a Legal Aid contract and are therefore unable to provide Legal Aid services. All family matters are undertaken on a privately funded basis only.