K (Children) (No 2) (Application for return orders: Best interests decision), Re

When deciding whether to make a return order under the inherent jurisdiction, the court must determine whether reunification is in the children’s best interests. The assessment is global and holistic, with welfare paramount. The court may use the welfare checklist in section 1(3) of the Children Act 1989 as a useful discipline, even where its application is not strictly required. A risk created by a parent’s past conduct must be balanced against the harm likely to result from continued separation. An undertaking may materially reduce, but cannot eliminate, the risk of repetition. Where professional evidence shows that reunification is the only option meeting the children’s welfare needs, refusing reunification may be disproportionate.

Kent County Council accommodated two children who had arrived in England from France without their parents. The children had been separated from their parents following a dangerous small-boat crossing. The parents sought reunification in France, subject to safeguards concerning lawful entry, care arrangements and supervised travel. The parties and the Secretary of State for the Home Department agreed a consent order providing for the children’s return to France and reunification with their parents.

The court therefore had to decide whether reunification with the parents was in the children’s best interests, particularly in light of the risk that the parents might again attempt an illegal entry to the United Kingdom and expose the children to serious harm.

1. Best interests assessment. The court’s task under the inherent jurisdiction was to determine whether the children should be reunited with their parents. Their welfare was paramount. A global and holistic assessment was required, taking account of their wishes and feelings, needs, the effects of changes in circumstances, background, harm suffered or risked, and the parents’ capacity to meet their needs. The welfare checklist in section 1(3) of the Children Act 1989 was used as a useful discipline, although its application was not strictly necessary.
2. Risk and competing harm. The parents’ decision to undertake the dangerous crossing had caused significant emotional harm and exposed the children to a risk of death or serious injury. The parents gave undertakings not to attempt illegal entry again and showed regret. The risk could not be eradicated, but the evidence indicated that it was substantially diminished. It had to be balanced against the near certainty of continuing significant emotional harm if the children remained separated from their parents, including the prospect of further foster-placement disruption.
3. Parental capacity and arrangements in France. Apart from the crossing, the professional evidence identified no material concerns about the parents’ ability to meet the children’s physical and emotional needs. The French safeguarding arrangements provided accommodation, schooling and local-authority support. The children’s bond with their parents, their wishes for reunification and their capacity to adapt supported an early return.
4. Disposition. In the circumstances, refusal to reunite the family would have been disproportionate. Reunification with the parents in France was the only option meeting the children’s global welfare needs. The consent order was accordingly approved on 19 February 2025.