K (Child)

Permission to remove a child temporarily to a non-Convention country requires careful and thorough preparation. The court must assess both the risk that safeguards or contact arrangements will be breached and the consequences of breach. A parent’s good record may reduce the risk, but it cannot answer the separate question of the seriousness of the consequences. Where return may become practically impossible, the court should put in place all practicable safeguards, including expert evidence, mirror orders or notarised agreements where appropriate. A prediction that the parent is likely to return is not, by itself, an adequate foundation for authorising removal.

The father sought permission to take his ten-year-old child from England to Bangladesh for a summer holiday. The child had lived principally with the father since the parents’ separation, and the father had an established record of care. Bangladesh was not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. The High Court granted permission on the basis that the father was more likely than not to return with the child and accepted his undertakings.

The mother appealed, arguing that the application had been prepared too hastily, without oral or expert evidence and without adequate safeguards concerning return and enforcement. The central issue was whether the father’s assurances and record were sufficient, or whether the court had to investigate and impose practicable protective mechanisms before authorising the holiday.

1. Appeal allowed. The order granting permission to remove the child was set aside. The remaining provisions stood or were amended by agreement, and the father’s passport was to be held by his solicitor pending agreement or order.
2. An application to remove a child to a foreign jurisdiction requires careful and thorough preparation. Where the court is evaluating the applicant’s reliability, oral evidence will ordinarily be appropriate so that credibility and reliability can be assessed in the witness box.
3. In difficult international cases, the court must assess both the magnitude of the risk that the contact order will be breached and the magnitude of the consequences if it is breached. The father’s impeccable record as a carer was relevant to risk, but irrelevant to the seriousness of the consequences.
4. Where breach could cause the child’s irretrievable separation from established roots, the court should achieve what security it can by putting in place all practicable safeguards. This may include expert evidence concerning the foreign legal system, mirror orders and notarised agreements. A financial bond may be unrealistic in some cases, but that does not remove the need to explore other safeguards.
5. The trial judge’s conclusion that the father was likely to return was not disputed, but it was an inadequate foundation for the order. The court should also consider the possibility that proceedings in the foreign state may apply different cultural and legal evaluations of the child’s welfare, creating the risk of competing litigation.
6. The cases of Re T (Staying Contact in Non-Convention Country) [1999] 1 FLR 262 and Re A (Security for Return to Jurisdiction (Note)) [1999] 2 FLR 1 were identified as useful precedents concerning protective mechanisms.

• Court of Appeal (Civil Division): Appeal allowed on paragraph 1 of Judge Hallon’s order; paragraph 2 stood and paragraph 3 was amended by agreement.
• High Court (Family Division): Her Honour Judge Hallon, sitting as a section 9 judge, granted the father permission to remove the child to Bangladesh for a holiday and accepted his undertakings.