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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> NE v EN [2025] EWHC 729 (Fam) (20 March 2025) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2025/729.html Cite as: [2025] EWHC 729 (Fam)

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/03/2025

This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. THE HONOURABLE MR JUSTICE TROWELL

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Mr Justice Trowell :

1. I shall refer to the applicant as the father and the respondent as the mother in this judgment. I apologise to them for so labelling them, but I intend to lodge a copy of this judgment in an anonymised form at the National Archives for the purposes of transparency and such labels will help the anonymisation process.
2. This judgment is given at the conclusion of what was listed as a two-day hearing between the parties to determine the father's application under the inherent jurisdiction for the summary return of the two children, A (aged 6) and B aged (3) to the jurisdiction of England and Wales from a country C (which is not a party to the 1980 Hague Convention) where the mother had taken them in July 2024.
3. The mother agreed that the children were habitually resident in this country at the time that she removed them. She agreed that there was no issue as to jurisdiction of this court. She agreed that she took the children without the father's consent. She agreed before the beginning of the hearing that she would return the children to this jurisdiction at the end of the school year, which I have noted as by the 1 August 2025.
4. At the hearing the father made clear that he would not object if the mother wanted to stay another year so long as she promised to return the children by summer 2026. That was something he had already offered as an attempt to reach an agreement between them. He welcomed their early return.
5. The substantial issue on which I was to rule was therefore dealt with by agreement. Nonetheless there was a significant dispute between the parties as to what the children's living arrangements would be on their return. The father proposed that they should divide their time equally between the parties: either week by week, or 4 days by 4 days. The mother proposed that the children should live with her and have contact with the father, subject to support, on a fortnightly basis, each Saturday from 10 am to 7 pm.
6. It was agreed by the parties that the father should commit himself to undertaking a Domestic Abusers Perpetrators course. That will take, I was told, some 6 months. And, it was agreed that the father would continue to share parental responsibility for the children.
7. The mother's proposals in substantial measure agreed with the recommendations of a Cafcass Family Court Adviser, Ms Gwynne. I am indebted to Ms Gwynne for her thoughtful report and addendum report, and for her attendance at this hearing and at the PTR.
8. I acknowledge that these proceedings were conceived of for one purpose – a summary return – and are now being used for another – the children's living arrangements. It would not however be appropriate for me to order the children back to face contested and uncertain arrangements, so it is necessary for me to resolve, at least in the short term their living arrangements.

Summary Background

9. The mother and father are both 35. They married in 2018 and separated in 2023. They are both Muslims and they had an Islamic divorce in February 2023 and a legal divorce in April 2024.
10. The father has formed a new relationship and is expecting a new child with his wife in May of this year.
11. In April 2024 the father suggested that the parties might think about a move to country C in certain circumstances. That might have precipitated the mother's move in July 2024, but she entirely accepts that her move was without his consent. She was looking to build a better life for her and the children than she felt she could look forward to in London.
12. The mother had been living with her mother before she moved. The children had been living with her but had overnight contact with the father at the weekends, and some extra days during holiday periods. There was a disagreement as to quite how long, but even on the mother's case up to 3 to 4 days at a time.
13. The father made an application to court for the children's summary return on the 3 July. That has been managed to this hearing through a series of direction hearings.
14. It is appropriate that I pull out two points:

a. Peel J decided that there did not need to be a fact-finding hearing in November 2024, despite the mother raising issues of domestic violence, because the parties agreed that the children should spend time with the father. He also by agreement made orders for the father to have contact with the children in country C over the Christmas period. A safeguarding letter subsequently came to the court and the parties from Cafcass which indicated that the father had 5 convictions prior to 2019. There were later incidents on which no further action had taken place, some of which involved the mother. I will not set them out in this judgment, but I want to make clear that I take them seriously. The mother was not aware of the earlier convictions. The safeguarding letter recommended suspending contact. The court did not respond (it was over vacation and did not receive a judge's attention); the mother initially put off contact; she then agreed, given the court order, the fact the father was in country C, and, as she relates, the children wanted to see their father; the father then had 5 days of contact and it is agreed that the children enjoyed that time.

b. The father at the time of the composition of the first Cafcass report agreed for a while that the mother could stay in country C. He changed his mind on this before the submission of the report (31 January 2025). He decided his children needed him as part of their lives.

This Hearing

15. I conducted a ground rules hearing at the beginning of the hearing before me. I had before me two litigants in person and allegations of domestic violence but no findings to that effect. The mother was attending the hearing remotely from country C.
16. I proposed to the parties that so long as each put civil questions to the other, I would let them question the other, but that I would intervene if I considered it necessary or the person being questioned asked me to intervene. They agreed to that approach, and in fact each asked very few questions of the other. Most of the questions came from me.
17. I had oral evidence from each party, and Ms Gwynne, and I had closing submissions from the parties.
18. Both mother and father impressed me as parents with much to offer their children. Both were however prepared to latch onto comments of the other to try and make the other look bad. That is in part a consequence of the adversarial nature of proceedings. It is here, I find, in part a consequence of continuing mistrust and anger between them.
19. I said, and no doubt it sounded like unrealistic preaching from the bench, that each would do well to accentuate the positives of the other as a parent. Each can give a lot to their children as long as they can avoid arguing with each other. I would however here make a further point, namely that if there were to be violence between them, or any form of aggressive behaviour that will undo all the good that might otherwise have been done, and will seriously harm the children. The balance between the parties is not on a level here. The father's convictions mean that the court must necessarily be concerned about his behaviour.

Arguments on living arrangements on return

20. The father made the following points to me:

a. He had before separation been a fully involved father;

b. The children are very happy in his company;

c. His children are in need of him as a father, particularly the elder child, who is sometimes unhappy without him;

d. The relationship between him and the mother had not worked out well – indeed it was toxic – but he was now in a relationship from which he had benefited and he had attended a course on how to be a better father from which he had learned how to manage himself better;

e. He agreed to attend the Domestic Abuse Perpetrators course.

21. He had in his written evidence make points that the mother was neglectful of the children – he did not pursue those points before me. I had already said to him that the complaints did not seem to me significant criticisms of the mother's care but just the incidents of normal life. He had in his written evidence set out that the mother had before she had met him given up a child for adoption. Ms Gwynne said she had medical records which conflicted with that. The mother denied it. I asked how it would be relevant if true. The father did not in his questioning, or his closing pursue that line at all.
22. The mother said to me:

a. The father has never previously had the children for half their time, or had them for as long as a week in one go;

b. That his proposal was unstable and a big jump for them;

c. That the father would not be able to manage the added responsibility of being a full-time dad and the pressure might cause him to lose his temper, particularly given he would also have a very young child.

23. Ms Gwynne tells me that while she thinks that the children will benefit from an ongoing relationship with their father there are significant risk factors in relation to his past behaviour which means his time with the children should be supported by a third party. She does not think his proposals in relation to the children living with him are well thought through.
24. I remind myself of the factors set out in section 1(3) of the Children Act. The answer to this question is not one of painstaking balance. The children have had their principal home with their mother since the parties separated in 2023. The father's past offending behaviour, which has now come to light, gives rise to risk factors in relation to him, which are exacerbated by a new child. The children need stability and safety. I therefore determine they will live with the mother on their return. I understand that this will be in an area of London with her mother at least at first.
25. The next issue is what time they will spend with their father. This breaks down into frequency, support, and duration.
26. There is no real issue as to frequency: the mother and the father agree alternate weekends. The father would like more but he will have about a 1½ hours' drive to collect and return the children, and he will need the assistance of his new wife for support. He sensibly does not want to over promise and then let the children down.
27. As to support: Ms Gwynne urges on me that there needs to be an agreed third-party supporter. She tells me that the father's new wife will not be appropriate because she will have a new child. There is no other agreed third party because the mother rejects the father's mother and sister as being too weak to stand up to the father. The mother and father do however agree that the new wife would be appropriate.
28. I need to pay tribute to the new wife. She has clearly been able to command the mother's respect such that she reassures her as to her good sense and independence. I do however need to worry about her ability to manage this job as well as look after her new child. I also need to consider whether she will be too fragile to stand up to the father when she has a new child.
29. I make clear I have not heard from her.
30. I am very concerned about the Cafcass Officers suggestion that an ISW could be employed. The father is not a wealthy man. He will have to pay a significant sum of money to attend the DAP course. He will have to pay child maintenance. I think that to require separate payment for an ISW (or the like) will in reality mean contact will either not happen or will in fact happen with no support.
31. I accept that there will be risk, and I repeat that I take seriously the impact of the incidents detailed in the safeguarding letter, but I accept the approach that the mother and father advance, namely that the father's new wife supports him during contact. I would however make provision that there be liberty to the parties to agree an alternative person, so long as the agreement is in writing.
32. As to duration: there is force in the father's argument – why should he have less contact than he had before the mother abducted the children? Ms Gwynne's answer however is to the point. She had previously made no recommendation. The earlier convictions were not known. Now they are known then the potential risk needs to be factored in. So, she says contact should not be overnight. The mother says the same thing. The father says he should have overnight contact. There is no risk. The children enjoyed it last Christmas in country C and the mother allowed that to happen after receiving the safe-guarding letter.
33. It is clear that there is some force in both sides of this debate. My task is to manage risk while promoting a beneficial relationship for the children.
34. The course that I take is to say that the contact should not be overnight until the conclusion of the DAP course. The course takes about 6 months. At that stage, subject to the father having a broadly positive report, the parties should review the contact and see if they can reach agreement for further contact to include overnight contact, and holiday contact. Further, at that stage the parties should try and reach agreement as to whether the father still needs to have ongoing support to enable contact to take place.
35. Any agreement should be in writing. If they cannot reach agreement then the more restrictive provisions of this order will continue, but if they cannot reach agreement each side can make an application to the local family court.
36. It is not ideal for the parties to have more proceedings to face. I very much hope that there will not be further proceedings, and they are able to reach agreement. I think that is entirely possible in part because by the time of the review there should be the reassurance of a successful course attended by the father, in part because of trust built up over good relationships for the next 6 months, and in part because of positive reports from the children as to how contact is going.
37. Given the parties are in person I shall draft an order for them to consider with this judgment.

Mr Justice Trowell

21 March 2025