R and Y (Children), Re

Once a court has conducted a full investigation into the merits of children’s future care, the resulting decision is a long-term welfare decision, not an order for summary return to another jurisdiction.

Where domestic abuse has been established, each element of the welfare assessment must be evaluated in the context of that abuse. The court must address its effect on the children, future risks, parental capacity and the abused parent’s conduct and concerns. Practice Direction 12J reflects best practice and should, as appropriate, be applied by analogy in inherent-jurisdiction proceedings.

The father applied under the High Court’s inherent jurisdiction for the summary return of two children to the United Arab Emirates. The court subsequently conducted a lengthy fact-finding hearing and found that the father had physically abused the mother and children, psychologically abused the mother and exercised unhealthy financial control.

After a further welfare hearing, the deputy judge ordered the children’s return to the UAE in the father’s care. The mother appealed. The central issues were whether the decision remained one of summary return after the full investigation of the merits, and whether the welfare assessment had adequately evaluated the established domestic abuse.

1. Appeal allowed. An order for summary return under the inherent jurisdiction returns a wrongfully removed or retained child to the place of habitual residence without a full investigation of welfare, leaving child-arrangements questions to the courts of that country. Once the court conducted a detailed fact-finding hearing and obtained a detailed Cafcass assessment, the point at which it could properly order a summary return had passed. The court had carried out a full investigation of the merits and therefore faced a long-term welfare decision.

2. The judge’s repeated description of the decision as one of summary return would not by itself have justified appellate intervention if he had undertaken a full and proper welfare assessment under section 1(3) of the Children Act 1989. His welfare analysis was, however, fundamentally flawed. The findings that the father had physically abused the mother and children and subjected the mother to control were substantial and serious. They required careful evaluation across the whole welfare assessment.

3. The findings should have featured prominently when evaluating the children’s past and future harm, their heightened emotional needs, the father’s capacity to care for them alone and protect them from harm, and his ability to meet any additional needs. They were also essential context when assessing the mother’s aversion to returning to the UAE and her difficulties in promoting contact. The Cafcass officer’s omission of the physical-abuse findings produced an inaccurate summary and materially weakened the recommendation on which the judge relied.

4. Practice Direction 12J does not, on a strict reading, expressly govern inherent-jurisdiction proceedings. Nevertheless, it reflects best practice and should, where appropriate, be applied by analogy. After finding domestic abuse, the court should consider whether risk assessment or intervention is required and must apply the welfare checklist by reference to the abuse. It must address the resulting harm and risk, parental conduct, likely future behaviour and each parent’s capacity to appreciate the effects of abuse. The judge did not do so.

5. The findings’ age, their occurrence during a toxic relationship, and the fact that the controlling behaviour did not affect every aspect of the mother’s life did not remove the need for that analysis. In this finely balanced case, the omissions meant that the decision could not stand. The return order was set aside and the case remitted for a fresh welfare hearing before a different judge to determine whether the children should live with their mother in England or their father in the UAE.

1. Court of Appeal (Civil Division): The appeal was allowed in [2024] EWCA Civ 131. The return order was set aside and the case remitted for a fresh welfare hearing before a different judge.
2. High Court, Family Division: Mr Paul Hopkins KC, sitting as a deputy High Court judge, conducted a fact-finding hearing and subsequently ordered the children’s return to the UAE in their father’s care. No neutral citation for either judgment was stated.