HK v PB & Anor

When deciding whether a child should move from a settled placement with a relative to live with a parent, the court must determine welfare by applying the statutory welfare framework to the child’s individual circumstances. The statutory presumption that parental involvement furthers welfare does not create a presumption that the child should live with that parent.

A child’s clearly expressed wishes and feelings require careful consideration, even where limited weight is appropriate because of age. The court must weigh the likely harm of disrupting a secure attachment against the prospective benefits of a change of primary carer and the promotion of the parental relationship. Where regular, well-defined contact can preserve that relationship with less risk of harm, it may be the more proportionate welfare outcome.

The applicant aunt sought a special guardianship order concerning a seven-year-old child who had lived with her in South Africa since the child’s mother died. The father sought a child arrangements order and wished the child to return to England and Wales to live with him.

The child was happy and settled in South Africa, had a close relationship with the aunt and grandmother, and had developed a positive relationship with the father during staged contact in England. The principal issue was whether the benefits of placing the child with the father outweighed the likely disruption, emotional harm and safeguarding risks, including the father’s recent history of excessive alcohol consumption and limited planning for the child’s needs.

1. Outcome. The court refused to place the child in the father’s care and directed that she return to South Africa in the aunt’s care. The parental relationship was to be promoted through structured, unsupervised contact.
2. The decision was governed by section 1 of the Children Act 1989 and the welfare checklist. Section 1(2A) required the court to presume, unless the contrary was shown, that the involvement of a parent in the child’s life would further welfare. That presumption concerned parental involvement and did not amount to a principle that a child should live with the parent.
3. The child’s wishes and feelings were clearly expressed. Although, at seven, they attracted limited weight and the child could not be given responsibility for the decision, they required careful consideration, particularly because they were rooted in objective features of the child’s life and the likely distress caused by overriding them. The court also considered the child’s settled home, principal attachment to the aunt, bereavement-related vulnerability, relationships with extended family and friends, and the uncertain longer-term consequences of removal.
4. The court was cautious about inflicting known and serious short-term harm in the hope of a long-term benefit that remained speculative. The father’s recent abstinence from alcohol was a work in progress after a lengthy history of excessive consumption. His limited support network and lack of concrete planning for the child’s likely distress materially weakened the case for a change of primary carer.
5. Clear and unequivocal orders for contact were a more proportionate means of promoting the paternal relationship. The arrangements included weekly video calls, visits in South Africa and England, overnight contact with the father and his partner, and the aunt’s best endeavours to promote the relationship. Supervision was unnecessary.