K (A Child), Re

In determining a child’s interim welfare, the court must treat welfare as paramount and give proper weight to delay, parental involvement, the child’s needs, and the likely effects of change. A child’s return may be ordered where the practical arrangements for accommodation, healthcare, education and care sufficiently promote welfare, even though further evidence is required before deciding the child’s medium- or long-term future. Proceedings should not be stayed or adjourned merely because related foreign proceedings remain unresolved where that would prolong delay and impede welfare decision-making.

The proceedings concerned K, a young child who had been left in India while litigation concerning his custody continued there and in England. Earlier judgments had determined that K was habitually resident in England, refused a stay on forum non conveniens grounds, and declined an anti-suit injunction. The father renewed his application for a stay or adjournment and opposed K’s return. The mother sought K’s interim return to England for approximately six months so that he could resume her care, undergo assessment and receive appropriate healthcare and education. The Children’s Guardian supported an interim return, subject to continued support from the maternal grandparents.

The central issues were whether the proceedings should remain stayed or be adjourned pending the Indian proceedings, and whether K’s welfare required an interim return to England.

1. Outcome. The father’s renewed application for a stay or further adjournment was refused. An order was made for K’s return to England and Wales for six months from the date of return, subject to the Indian court removing its order preventing removal from India.
2. Under Children Act 1989, s 1(1), K’s welfare was the paramount consideration. Delay was likely to prejudice his welfare under s 1(2). The court also recognised the general principle reflected in s 1(2A) that a parent’s involvement in a child’s life is presumed to further welfare, subject to the circumstances of the case.
3. The court applied the welfare checklist in s 1(3). K’s complex physical, emotional and educational needs, his attachment to his maternal grandmother, the loss of his relationship with his mother, the likely effects of changing language, home and healthcare arrangements, and the respective capacity of the parents and grandparents to meet his needs were all considered.
4. The evidence established sufficiently reliable arrangements in England for accommodation, financial support, registration with a general practitioner, developmental assessment, therapy, education and continuity of care by the maternal grandparents. Any delay in accessing NHS services could be reduced by home training and private or other support.
5. The father’s concerns about healthcare, language and alleged abuse did not outweigh the benefits of reuniting K with his mother. The court considered that the restoration of maternal care would more than offset the disadvantages of changing country and therapeutic provision.
6. A final welfare decision required further assessment after K’s return. Nevertheless, the unresolved Indian proceedings provided no sufficient reason to defer an interim welfare decision. Further delay was likely to impede, rather than assist, resolution of the litigation.

The judgment records that earlier High Court decisions determined K’s habitual residence and refused a stay and an anti-suit injunction. Permission to appeal those decisions was refused by Lord Justice Moylan on 27 March 2019. The present judgment was a first-instance interim welfare decision.