R and Y (Children), Re
[2024] EWCA Civ 131
HK v NK (Domestic Abuse)
2 August 2024
[2024] EWHC 1987 (Fam)
High Court
A court decided where two children should live. Even though their dad hurt their mom in the past, the judge said it was best for the kids to live with their dad in their home country (where they were born) because that’s what the kids wanted. The judge said the dad wasn't likely to hurt them again, and that their mom had some problems too that made it harder for her to care for them. The kids will see their mom during school holidays.
Key Facts
- •Remitted case from Court of Appeal concerning the welfare of two children, R (11) and Y (9).
- •Father (HK) seeks to move children from England to the UAE, their birthplace.
- •Mother (NK) alleges serious domestic abuse by the father, including physical and verbal abuse.
- •Previous fact-finding hearing found the father perpetrated domestic abuse, but not all allegations were upheld.
- •Children initially expressed a strong desire to return to the UAE, but their views evolved throughout the proceedings.
- •Conflicting evidence and assessments from multiple Cafcass officers.
- •Significant concerns regarding the mother's parenting capabilities and her ability to facilitate contact with the father.
- •Mother's immigration status in the UK is potentially linked to the children's residency.
Legal Principles
The inherent jurisdiction of the High Court allows for orders concerning children's welfare.
Re NY (A Child) [2019] UKSC 49
In welfare cases, a full inquiry must be conducted, considering the 'welfare checklist' from the Children Act 1989, even under inherent jurisdiction.
Re NY (A Child) [2019] UKSC 49
Practice Direction 12J applies to cases involving allegations of domestic abuse, even under the inherent jurisdiction.
Re NY (A Child) [2019] UKSC 49
When determining child arrangements where domestic abuse has occurred, the court must prioritize the child's safety and best interests, considering harm suffered and the risk of future harm.
FPR 2010 PD12J, paragraphs 35-37
In cases of domestic abuse, the court must consider the impact on the child and parent, and determine future orders for their protection and welfare.
Re H-N and others (Children) [2021] EWCA Civ 448
Outcomes
Children to live with father in the UAE.
Balancing all welfare factors, including the father's past domestic abuse (deemed low risk going forward), the children's wishes (especially Y's strong preference for the UAE), the mother's parenting difficulties, and the children's attachment to the UAE.
Children to have contact with mother during school holidays.
To maintain and develop the children's relationship with their mother, acknowledging the mother's significant limitations in facilitating contact.