S v S (No2)(Art 21 Welfare)

In determining child-arrangements and related applications, the child’s welfare remains paramount. The statutory presumption that parental involvement furthers welfare is displaced where involvement would expose the child to a risk of harm. No direct or indirect contact should be ordered where the court cannot secure the physical and emotional safety of the child and resident parent, and contact would be detrimental to welfare. A Children Act 1989 s.91(14) restriction may be imposed where further litigation would cause unacceptable harm or disruption. Its duration and scope must remain necessary and proportionate. The court may also control the exercise of parental responsibility through specific-issue and prohibited-steps orders.

The father applied under Art 21 of the 1980 Hague Convention after withdrawing his application for the summary return of three children to Turkey. The mother had obtained asylum in England, and the children were habitually resident here. Following a fact-finding hearing, the court found extensive domestic, sexual and coercive abuse, emotional harm to the children, threats, attempts to locate them and a continuing lack of insight by the father.

The father did not attend the final hearing and continued to challenge the court’s jurisdiction and findings. The issues were whether the children should live with the mother, whether any direct or indirect contact with the father could safely occur, whether restrictions should be placed on future applications, and whether the father’s parental responsibility should be circumscribed.

1. Final orders. The court made final lives-with orders in favour of the mother, ordered no direct or indirect contact between the children and their father, imposed specific-issue and prohibited-steps orders regulating the father’s parental responsibility, and made a Children Act 1989 s.91(14) order for five years.
2. The children’s welfare was paramount under s.1. Their strongly expressed wishes and feelings were authentic and justified by their experiences. The father had caused, and continued to pose a risk of causing, emotional and physical harm. He rejected the findings, showed no remorse or insight, and was not motivated by the children’s best interests.
3. The statutory presumption in favour of parental involvement was displaced. The court applied the principles governing contact in cases involving harm, including the requirement to consider all realistic alternatives and to ensure that the child and resident parent’s physical and emotional safety could be secured before, during and after contact. Supervision, undertakings and protective orders would not sufficiently address the continuing risk.
4. No indirect contact could safely be arranged. Communications would require vetting, burdening and potentially retraumatising the mother, while the children opposed all communication and might suffer distress from receiving messages or gifts. Contact would also undermine their trust in their mother, professionals and the family justice system. Exceptional circumstances justified continuing the no-contact order beyond the children’s sixteenth birthdays.
5. The court applied the guidance on s.91(14). The order was protective rather than punitive. Further applications would cause unacceptable disruption, upset and uncertainty, and a five-year restriction was necessary and proportionate to provide an extended period of stability and recovery.
6. The father’s parental responsibility was restricted because information about the children could be used to locate them, undermine the mother and continue the abuse. The mother was therefore not required to consult him, and the father was prohibited from obtaining information about the children’s whereabouts, education, health, routines and professional involvement, or removing them from care, without the court’s consent.

First-instance decision of the High Court (Family Division). The judgment records an earlier fact-finding decision, S v S (Art 21 Findings of Fact) [2025] EWHC 3169 (Fam), within the same proceedings.