HK v NK (Domestic Abuse)
[2024] EWHC 1987 (Fam)
R and Y (Children), Re
28 February 2024
[2024] EWCA Civ 131
Court of Appeal
A judge sent two children back to live with their father in the UAE, even though a separate hearing found the father had abused the mother and children. A higher court decided this was wrong because the judge didn't pay enough attention to the abuse. Now there will be another hearing to decide where the children should live.
Key Facts
- •Appeal against an order for the return of two children (R and Y) to the United Arab Emirates (UAE) to live with their father.
- •Mother, an Eastern European citizen, and father, a UK citizen, met and married in the UAE, living there for 10 years before separating in the UK.
- •Mother alleged financial abuse, controlling behaviour, sexual assault, and rape against the father.
- •Father denied allegations and made counter-allegations.
- •Family remained in the UK after the allegations.
- •A fact-finding hearing resulted in findings of physical abuse of the mother and children, psychological abuse, and financial control against the father, but not sexual abuse.
- •Cafcass officer recommended the children's return to the UAE.
- •Judge ordered the children's return to the UAE, despite the findings of abuse against the father.
- •Mother appealed, arguing procedural irregularities and a flawed welfare analysis.
Legal Principles
In non-Hague Convention cases, courts must act in accordance with the child's welfare. A return order is made because it's in the child's best interests, not because another consideration supersedes the welfare principle.
Re J (A Child) (Child Returned Abroad: Convention Rights) [2005] UKHL 40
Courts have power to order immediate return of a child to a foreign jurisdiction without a full investigation of the merits, but this was not the case here due to a fact-finding hearing.
Re J (A Child) (Child Returned Abroad: Convention Rights) [2005] UKHL 40; Re A and B (Children: Return Order: UAE) [2022] EWHC 2120 (Fam)
Practice Direction 12J (Child Arrangements and Contact Orders: Domestic Abuse and Harm) should be considered in cases with allegations of domestic abuse, even if not explicitly applicable to inherent jurisdiction proceedings.
Practice Direction 12J, Re NY (A Child) [2019] UKSC 49
Outcomes
Appeal allowed.
The judge's welfare analysis was fundamentally flawed by failing to adequately consider the serious findings of abuse against the father in the fact-finding judgment. The Cafcass officer's report also inaccurately summarised these findings, influencing the judge's decision. The judge failed to apply the principles of Practice Direction 12J concerning domestic abuse.
Order for return to the UAE set aside.
A fresh welfare hearing is required to reconsider the appropriate arrangements for the children's future care, considering all evidence, including findings of abuse.