HK v NK (No 2)

A court retains jurisdiction to implement and enforce its own substantive child arrangements order, even where the child has subsequently become habitually resident abroad. Such implementation and enforcement are distinct from making a new substantive order and are not subject to the habitual-residence restriction applicable to new orders under the Family Law Act 1986.

The court may also resolve disputes about a settlement agreement which forms an integral part of its order. Whether enforcement should be undertaken in England and Wales or left to an overseas court is a separate question of practical appropriateness.

The proceedings concerned enforcement of a child arrangements order made on 22 October 2024 to give effect to a judgment ordering the children’s return to the UAE. The order contemplated a settlement agreement which could support a mirror order in the UAE.

The children had returned to the UAE and lived there with the Father, while the Mother remained in England. The settlement agreement had not been finalised and there had been an alleged breach concerning contact. The issues were whether the English court had jurisdiction, how the settlement agreement should be finalised, and whether enforcement orders should be made.

1. Jurisdiction. The court had jurisdiction to determine the settlement agreement and to make enforcement orders giving effect to its own substantive child arrangements order. This was an inherent power arising from the court’s control of its own process.
2. The 1996 Hague Convention ordinarily confers jurisdiction on the state of the child’s habitual residence under Article 5(1), as explained in A v A [2013] UKSC 60. However, the UAE was not a signatory. The absence of English habitual residence therefore did not confer exclusive jurisdiction on the UAE, and domestic law had to be considered, following A (A Child) [2023] EWCA Civ 659.
3. Under sections 8(1) and 8(2) of the Children Act 1989, and sections 1(1)(a), 2(1), 3 and 7 of the Family Law Act 1986, the habitual-residence requirement applies to a new substantive section 8 order. An order varying or discharging an existing section 8 order is treated differently. Implementation and enforcement are not included within the definition of a section 8 order and are therefore not governed by that habitual-residence requirement.
4. It would create unacceptable anomalies if a court could vary or discharge its order after the child moved abroad but could not implement or enforce it. The existence of jurisdiction did not determine whether enforcement was appropriate; in some cases, practical considerations might justify deferring to the overseas court.
5. The settlement agreement was amended to adhere as closely as possible to the existing order. Disputed financial matters outside that order were excluded, and provisions amounting to unnecessary micromanagement of the children’s upbringing were generally not included. The parties were directed to sign the agreement, and the Father was directed to lodge it with the UAE court. The matter was listed for further hearing on 22 October 2025.

High Court (Family Division): The present judgment determined the jurisdiction issue, finalised the settlement agreement and gave consequential directions. It arose from the earlier judgment in HK v NK [2024] EWHC 1987 (Fam) and the order made on 22 October 2024.