N (A Child)

When deciding whether to permit a child’s overseas holiday, the court must conduct a balanced assessment of all relevant considerations. It must take account of factors supporting the application as well as risks and concerns, and must consider the outcome from the child’s perspective. A decision based principally or exclusively on adult concerns, without addressing material positive factors, is inadequately reasoned and cannot stand. Relevant considerations may include the child’s previous experience of the destination, maintaining contact with family and heritage, professional welfare evidence, the destination’s legal protections, the child’s age and ability to manage the proposed arrangements, and the practical risks of travel.

The mother sought permission for her nine-year-old son to travel unaccompanied to Slovakia for a two-week summer holiday with his maternal grandmother and first cousin. The application was made alongside, and contingently upon, her unsuccessful application for permanent removal of the child to Turkey. His Honour Judge Vincent refused permission, relying principally on the father’s lack of trust in the mother, the recent application, language difficulties and the risks of the journey.

The mother appealed, submitting that the decision failed to consider relevant positive factors. The central issue was whether the refusal was sufficiently reasoned and, if not, what order should follow.

1. Appeal allowed. The refusal of permission for the two-week holiday could not be upheld because the judge’s single paragraph considered essentially only negative factors. He failed either to take relevant positive factors into account or to give them sufficient weight.

2. The assessment should have recognised that Slovakia, like Turkey, had acceded to the Hague Convention, reducing the force of concerns about wrongful retention or removal. It should also have considered the child’s previous happy holidays in Slovakia, his relationship with his grandmother and cousin, the importance of contact with his Slovakian heritage, and the court welfare officer’s support for a two-week programme.

3. The judge had viewed the issue too much through adult eyes. The child’s welfare and experience had to be considered from the child’s perspective, alongside the father’s concerns about an unaccompanied journey, a change of plane in Prague, the child’s age and his inability to communicate in an emergency.

4. The Court of Appeal substituted its discretion rather than remitting the matter. Permission was granted on a permissive basis, but its operation was deferred until summer 2007, when the child would be about 11¼ and better able to cope with an unaccompanied flight. The court encouraged the mother to consider accompanying him in 2006.

5. The court expressly left open the question whether Children Act 1989, in particular section 13, required permission for a foreign holiday arranged by the primary carer where others would care for the child during the journey and holiday.

• Court of Appeal (Civil Division) — Appeal allowed. Permission for the proposed unaccompanied holiday was granted on a permissive basis from summer 2007.
• Family Division, Truro District Registry — His Honour Judge Vincent refused the mother’s application for permission for the child’s two-week unaccompanied holiday to Slovakia on 14 November 2005.