M (A Child)

Where temporary removal of a child would be to a country from which recovery may be impracticable, the welfare assessment must address both the risk of non-return and the grave consequences of a breach. The court should secure all practicable safeguards before granting permission.

Expert evidence about the foreign legal position will not be required in every case. However, the court should ordinarily be inclined to obtain it and must clearly explain any decision to proceed without it. A parent’s refusal to give advance consent to removal cannot justify denying that parent the opportunity to test and evaluate the expert evidence.

The mother appealed against an order of Judge Pearlman, made on 24 September 2009, permitting the father to take their child on holiday to France and/or Cameroon. The father had sought a visit so that the child could meet his Cameroonian family and learn of his heritage.

The mother opposed overseas travel. She relied on the risk that the father might retain the child in Cameroon, a non-Hague Convention country, and on concerns about the father’s finances and compliance with orders in ancillary-relief proceedings. She asked for an adjournment to obtain expert evidence about recovery and safeguards in Cameroon. The judge refused that request and relied principally on her assessment that the father could be trusted, coupled with a proposed notarised agreement.

The central issue was whether the judge could grant permission without the expert evidence and practical safeguards identified in Re K (Removal from Jurisdiction: Practice) [1999] 2 FLR 1084.

1. Appeal allowed. Lady Justice Black held, with whom the President agreed, that the judge’s fundamental error was to decide the application without expert evidence concerning the practical means of securing the child’s return if the father failed to return him.

2. Re K (Removal from Jurisdiction: Practice) [1999] 2 FLR 1084 required the court to assess both the magnitude of the risk of breach and the magnitude of its consequences. Where non-return could cause irretrievable separation from a parent and the child’s roots, the court should put in place all practicable safeguards. The parent’s good record and an undertaking were relevant to risk, but did not answer the consequences of breach.

3. Expert evidence is not invariably necessary in an overseas-holiday case. Nevertheless, the judge should approach the issue with an inclination that it will be needed where the destination’s legal system and the enforceability of safeguards require investigation. If deciding otherwise, the judge must clearly explain why. Here, the supposed notarised agreement could not be arranged in the manner assumed, and there was no evidence of its enforceability or of the availability and value of a mirror order.

4. The mother’s refusal to give prospective consent to removal if an expert report proved favourable should not have carried weight on the adjournment application. Such consent would have denied her the opportunity to assess and test the report and to address its implications in the overall welfare evaluation.

5. The court rejected the separate complaint that the judge had wholly failed to consider the harm of retention, although fuller analysis of the father’s links with England, financial position, and conduct in ancillary-relief proceedings would have assisted. Permission to appeal was granted and the appeal allowed. The President observed that the father could make a fresh, properly supported application before a different judge.

• Court of Appeal (Civil Division) — permission to appeal was granted and the mother’s appeal was allowed: [2010] EWCA Civ 888.
• Principal Registry of the Family Division — Judge Pearlman permitted the father to take the child on holiday to France and/or Cameroon: FD08P01670.