K v E
[2023] EWHC 2890 (Fam)
Y and K (Children: Summary Return Application: Asylum), Re
12 March 2024
[2024] EWHC 555 (Fam)
High Court
A mom took her kids from Germany to the UK to escape an abusive dad. The dad wanted them back, but the judge decided it was safer for the kids to stay in the UK because returning them to Germany might put them back in harm's way. The judge considered the abuse allegations, the kids' needs, and the mom's situation before making the decision.
Key Facts
- •Iranian mother and her two children (Y, 5, and K, 2) crossed the English Channel in a small boat without permission.
- •Father, residing in Germany, sought the children's return under the 1980 Hague Convention and later under the court's inherent jurisdiction.
- •Mother's asylum claim was deemed inadmissible by the UK Home Office.
- •Mother alleges domestic abuse by the father.
- •Father withdrew his Hague Convention application.
- •Mother initiated judicial review proceedings against the asylum decision.
Legal Principles
Children's welfare is paramount.
Children Act 1989, Section 1(3)
Broad discretion to decide the shape and extent of the welfare inquiry, including investigation of domestic abuse allegations.
Re A and B (Summary Return: Non-Convention state) [2022] EWCA Civ 1664
Key considerations from Baroness Hale's speech in Re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, regarding summary return in non-Hague Convention cases.
Re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40; J v J (Return to Non-Hague Convention Country) [2021] EWHC 2412 (Fam)
Eight linked questions from Lord Wilson in Re NY (A Child) [2019] UKSC 49, concerning summary return orders.
Re NY (A Child) [2019] UKSC 49
Principles and procedure in Appendix 2 of the President’s Practice Guidance: March 2023 apply even without an outstanding protection claim.
Appendix 2 of the President’s Practice Guidance: March 2023; G v G [2021] UKSC 9
Protective measures must be effective.
Re T (Abduction: Protective Measures: Agreement to Return) [2023] EWCA Civ 1415
Outcomes
Father's application for the children's return to Germany dismissed.
Returning the children would not be in their best interests due to the mother's vulnerability, the allegations of domestic abuse, and the children's needs for stability and potential trauma.