Non-Convention Issues
The mother argued that the trial judge had erred in making a return order since under Sharia rules that would lead to the children being separated from both parents. Seeking to rely on the earlier Court of Appeal decision in Re JA (Child Abduction: Non-Convention Country) [1998] 1 FLR 231 [INCADAT cite HC/E/Uke 58] she argued that the return order should be overturned on the basis that the Sudanese system was inimical to child welfare. The Court noted that the guiding principle was indeed the welfare of the children concerned. However it pointed out that the understanding of this concept had to be subject to the cultural background and expectations of the jurisdiction concerned. The Court questioned whether it was advisable to permit an abducting parent to criticise the standards of the family justice system in a State not party to the Hague Child Abduction Convention other than in exceptional circumstances, where there might be evidence of persecution, or ethnic, sex, or any other discrimination. It was held that the principles of the paramountcy of the welfare of the children and that of international comity, in particular respect for the foreign jurisdiction, were not necessarily in conflict in the present case. This was because the children were Sudanese and that their welfare could well be served by a decision in accordance with the norms and values of the Sudanese society in which they lived. Consequently a decision in accordance with local law was capable of being in their best interests.
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