R (A Child)

When deciding whether a child may travel temporarily to a non-Hague Convention country, the court must treat the child’s welfare as paramount. It must keep three matters in focus: the risk of non-return, the consequences if non-return occurs, and the security provided by all available safeguards.

The court must be positively satisfied that the benefits of the visit outweigh the associated welfare risks. Safeguards should have a real and tangible effect abroad and be readily accessible to the parent remaining in the United Kingdom. Competent and complete expert evidence will normally be required to establish their effectiveness. Clear reasons are necessary if the court proceeds without it. Where doubt remains, the court should err on the side of caution and refuse permission.

The mother obtained permission from a deputy High Court judge to take her ten-year-old daughter temporarily to Kenya. The father opposed the visit because Kenya was not a party to the 1980 Hague Convention and he alleged a real risk that the child would not be returned. The judge considered that risk relatively low but accepted that its materialisation would have grave consequences.

The proposed safeguards included depositing passports and a notarised agreement. The passport arrangement proved ineffective, leaving the agreement as the only purported security. There was no expert evidence establishing its recognition, enforcement or practical value in Kenya.

The father appealed. The central issues were whether the judge had properly assessed the risk, consequences and available security, and whether permission could safely be based on the mother’s apparent reliability or an unverified safeguard.

1. Appeal allowed. The order permitting temporary removal to Kenya was set aside. The previous prohibited steps order was reinstated, preventing either parent from removing the child from England and Wales without the other parent’s express agreement or the court’s permission.

2. The overriding consideration under section 1 of the Children Act 1989 was the child’s best interests. Where some risk of abduction existed and its materialisation would cause obvious detriment, the court had to be positively satisfied that the advantages of the visit outweighed the welfare risks.

3. Applying Re K (Removal from Jurisdiction: Practice) [1999] 2 FLR 1084, the welfare determination required continuing attention to three related elements: the magnitude of the risk of breach, the magnitude of its consequences, and the security obtainable through all available safeguards. The judge had correctly found that the consequences of non-return would be grave, but failed to keep that finding in focus when evaluating the proposed safeguards and reconsidering the matter.

4. Safeguards should have a real and tangible effect in the foreign jurisdiction and be readily accessible to the United Kingdom-based parent. In most cases, competent and complete expert evidence addressing their effectiveness in detail will be necessary. Consistently with Re M (Removal from Jurisdiction: Adjournment) [2010] EWCA Civ 888, the court may proceed without such evidence, but must give very clear reasons. If doubt remains, it should err on the side of caution and refuse permission.

5. The expert evidence did not establish that the notarised agreement could secure the child’s return from Kenya. The judge was therefore wrong to treat it as an effective safeguard and gave no clear reasons for doing so despite the evidential deficiency.

6. Reliance solely upon the judge’s favourable assessment of the mother’s intentions would also have been erroneous. Her apparent reliability was relevant to the likelihood of breach, but could not answer the separate question of its grave consequences. Without effective security, those consequences outweighed any possible benefit from the holiday.

1. Court of Appeal (Civil Division): The appeal was allowed. The permission for temporary removal to Kenya was set aside and the previous prohibited steps order was reinstated.

2. High Court: HHJ Oliver, sitting as a deputy High Court judge, granted permission for the mother to take the child to Kenya. Following the failure of the passport safeguard, he concluded on 1 August 2013 that sufficient safeguards nevertheless remained.

3. Earlier Children Act proceedings: A residence order had been made in the mother’s favour, with contact for the father, and a prohibited steps order prevented removal of the child to Kenya.