DS v RS

Permission to take a child abroad for a temporary visit depends on whether the proposed trip is in the child’s best interests. The court must assess the risk that the child will not be returned and the likely consequences of that outcome. A very low risk may justify permission even where the consequences of non-return would be severe. Relevant safeguards include the parent’s history of returning the child, credibility, family and practical circumstances, undertakings, travel information and other assurances. Permission may be granted subject to carefully defined conditions securing the child’s return.

The mother sought permission to take the parties’ young son to India for her sister’s wedding. On an earlier visit, she had extended her stay beyond the period agreed with the father, although she subsequently returned with the child. The father opposed the proposed trip, relying principally on the risk of non-return and the potential consequences for the child.

The application had been transferred to the High Court from the Uxbridge County Court. The central issue was whether the proposed visit was in the child’s best interests, having regard particularly to the risk and consequences of the mother failing to return him.

1. Permission granted. The proposed trip was in the child’s best interests. The mother was permitted to take him to India for the specified wedding period, subject to declarations, undertakings and practical safeguards.
2. The court accepted the mother’s evidence where it conflicted with the father’s. The mother’s explanation for extending the previous visit was accepted. Her prior returns with the child, her expressed intention to return, her connection with the child’s life in England and the cultural importance of the wedding supported the application.
3. The court assessed both the risk of breach and the consequences of breach. Although the consequences of permanent retention in India would be serious, the risk of non-return was considered very low. The absence of financial guarantees and the mother’s limited support in England were relevant but did not outweigh the evidence.
4. The approach in Re S (Leave to Remove from the Jurisdiction: Securing Return from Holiday) (2001) 2 FLR 507 was treated as comparable and adopted. The court accepted that the magnitude of the potential harm justified safeguards, while concluding that the low risk of non-return permitted leave.
5. Safeguards included declarations that the child was a British citizen and habitually resident in Great Britain; release and subsequent return of passports; provision of return tickets and an itinerary; parental undertakings to return the child by 15 October 2009; restrictions concerning an Indian passport, visas, future travel and foreign proceedings; and a supporting statement from the maternal grandparents.