X-N (A Child), Re

In an application to remove a child temporarily to a non-Convention country, the court must keep three matters in focus: the magnitude of the risk of breach, the consequences if breach occurs, and the security achievable through safeguards. A low assessment of risk does not remove the need to consider consequences separately. The decision must rest on sound fact-finding. In most such cases, expert evidence should address the effectiveness of safeguards; clear reasons are required if the court proceeds without it. The default approach is caution.

The mother sought permission to take her four-year-old daughter to China for about a month. Baker J allowed the application on 13 June 2014, in the decision identified as [2014] EWFC 17. The father appealed, arguing that the hearing had not properly addressed evidence concerning abduction risk, the consequences of non-return, available safeguards, or expert evidence concerning Chinese law and practice. The central issue was whether the welfare decision had been reached through an adequate fact-finding process and in accordance with the guidance governing temporary removal to a non-Convention country.

Appeal allowed. McFarlane LJ gave the leading judgment, with McCombe LJ and Vos LJ agreeing.

1. Fact-finding. The hearing had not properly engaged with the father's central factual allegations. His statement referred only indirectly to earlier material, which was not before Baker J. The reasons for an earlier contested order were also unavailable. The mother gave evidence, while the father was not called to give sworn evidence and asked only a few brief questions. The process therefore did not provide a reliable basis for deciding whether the mother's proposed travel created a risk of abduction or for determining the child's welfare.
2. Applicable guidance. The guidance in Re R [2013] EWCA (Civ) 1115 required consideration of the risk of breach, the magnitude of the consequences of breach, and the security achievable through safeguards. Baker J treated the consequences as very serious but then removed them from consideration because he regarded the risk as negligible. That approach was erroneous. The consequences required separate analysis, including the impact on the child of remaining in China and losing contact with her father. The safeguards also had not been adequately explored.
3. Expert evidence. The judge did not address the guidance that, in most such cases, competent and complete expert evidence should establish the effectiveness of proposed safeguards, with clear reasons required for proceeding without it. No expert had been formally instructed under Family Procedure Rules Part 25. The informal communications from Chinese lawyers raised important questions and were not properly examined or evaluated.
4. Order. The order granting permission was set aside rather than remitted for further reasons. The previous order restricting removal remained in force. Neither party could remove the child from England and Wales without the other's permission or an order of the court. The mother remained free to make a fresh application.

• Court of Appeal (Civil Division): Appeal allowed. The order made by Baker J was set aside, and the earlier restriction on removal remained in force.
• Swindon County Court: Baker J granted the mother permission to take the child to China for approximately 28 to 30 days on 13 June 2014. The decision is identified as [2014] EWFC 17.