HK v NK (Domestic Abuse)

In determining children’s welfare under the inherent jurisdiction, the court should conduct a full welfare enquiry. The first six matters in the welfare checklist in section 1(3) of the Children Act 1989 provide an appropriate framework, although they are not exhaustive or hierarchical.

Where domestic abuse has been established, the court must assess its nature, impact and future risk by reference to FPR 2010 PD12J. It must consider the safety of the children and the parent with whom they live, the parties’ capacity to recognise past abuse, and the likely effect of future arrangements. Domestic abuse is a significant factor, but the court must undertake a comprehensive and nuanced assessment of all welfare factors. It must not substitute a bare moral judgment for the statutory welfare evaluation.

The father applied under the inherent jurisdiction for orders concerning the future care of his two children, who had lived in the UAE until their mother retained them in England in August 2022. The father sought permission to remove the children permanently to the UAE, where he would care for them and the mother would have contact. The mother sought for the children to remain in England and opposed travel to the UAE.

A previous order requiring the children’s return to the UAE was set aside on appeal and the matter was remitted for rehearing in R and Y (Children) [2024] EWCA Civ 131. The central issue was whether, despite serious findings of domestic abuse against the father, the children’s welfare required them to move to his care in the UAE.

1. Outcome. The court ordered that the children should live with their father in the UAE and permitted their permanent removal from England and Wales. If the mother remained outside the UAE, the children were to spend the school holidays with her.
2. Although the application was under the inherent jurisdiction rather than section 8 of the Children Act 1989, the first six matters in section 1(3) supplied the appropriate framework for the welfare analysis. The checklist was non-exhaustive and its items did not form a hierarchy.
3. Following Re NY (A Child) [2019] UKSC 49, the discipline in FPR 2010 PD12J was relevant when determining whether the children should move to live with their father. The court had to evaluate the harm caused by domestic abuse, the likelihood of recurrence, the children’s and mother’s safety, the father’s motivation, the likely behaviour during future contact and both parents’ insight into past abuse.
4. The findings against the father involved serious and substantial physical and psychological domestic abuse, financial control and physical chastisement of the children. The children had suffered emotional harm through exposure to parental conflict and adult issues. Those matters required careful assessment, but did not determine the welfare outcome without consideration of the remaining factors.
5. The court accepted the fresh Cafcass assessment that the future risk of repeated abuse was low. Relevant considerations included the parties’ separation, the father’s increased insight and remorse, his engagement with alternative parenting strategies, the children’s lack of fear of him, and the absence of coercive control or a demonstrated abduction risk. The mother’s understandable fear and aversion to the UAE were considered in the context of the abuse, but her hostility and unwillingness to promote international contact remained relevant welfare considerations.
6. The children’s wishes and feelings were not determinative. Greater weight was placed on the daughter’s consistent wish to return to the UAE, while the son’s ambivalence was understood in light of his inappropriate sense of responsibility for the family. The UAE remained the children’s home in their experience, and the move was a return to a familiar environment rather than a move into the unknown.
7. The father was better placed to meet the children’s educational, emotional and day-to-day needs and was more likely to promote their relationship with the mother. The mother’s difficulties included limited insight into the children’s emotional needs, unsafe incidents in her care and an inability or unwillingness to promote contact beyond England.
8. Standing back and considering the welfare factors holistically, the court was satisfied that the orders would not expose the children or the mother to an unmanageable risk of harm. The children’s best interests were paramount.

• Court of Appeal: In R and Y (Children) [2024] EWCA Civ 131, the mother’s appeal against the earlier return order was allowed, the order was set aside and the matter was remitted for rehearing.
• High Court (Family Division): On rehearing, the court permitted the children’s permanent removal to the UAE and ordered that they live with their father, with school-holiday contact with their mother.