H, Re

When permission is sought to remove a child temporarily to a non-Hague Convention country, the court must rigorously assess the likelihood and magnitude of risks, the consequences if they materialise, and the safeguards available in the foreign and domestic jurisdictions. It must be positively satisfied that the benefits of the visit outweigh the welfare risks. Safeguards must have a real and tangible effect and be accessible to a UK-based parent. High Court expertise will often be appropriate. Expert evidence is not invariably essential, but a decision made without it requires clear justification. Uncontradicted Foreign and Commonwealth Office guidance may be persuasive evidence of risk and must be addressed.

The father appealed against an order of the Newcastle-upon-Tyne County Court permitting the mother to take their three-year-old daughter to Iran for a holiday. Iran was a non-Hague Convention country, and an existing order prohibited removal there. The father relied on his status as a political refugee, Foreign and Commonwealth Office guidance and risks of harm or retention. The mother relied on her own experience of travelling to Iran. The county court assessed the risks as sufficiently low and imposed no safeguards. The central issue was whether the court had adequately considered the risks, their consequences and available safeguards, and whether the application required determination by the High Court.

Ryder LJ gave the judgment, with Vos and Tomlinson LJJ agreeing.

1. Appeal allowed. The specific issue order was set aside and the application was remitted for rehearing by a judge of the High Court sitting in the Family Court.
2. A court exercising a protective jurisdiction must consider both the likelihood of a risk and the magnitude of the consequences if it materialises. It must consider whether proportionate safeguards can address those risks. This applies even where the risk of direct harm or retention appears unlikely.
3. In an application to remove a child temporarily to a non-Hague Convention country, the child’s best interests remain paramount. The court must rigorously examine the advantages of the visit, the welfare risks, the consequences of abduction or retention, and the safeguards available under the foreign jurisdiction’s domestic law and through arrangements between the parties and the court. The safeguards must be effective, tangible and accessible to a UK-based parent.
4. The court should take account of relevant guidance from agencies assisting courts and individuals. The Foreign and Commonwealth Office guidance was at least persuasive because it was uncontradicted. The risk it identified was independent of the mother’s intentions and the father’s assertions and therefore required consideration in the judge’s reasoning.
5. The application fell within the broad framework of a specific issue application under section 8 of the Children Act 1989, but its subject matter called for the experience of a High Court judge. Expert evidence is not necessarily required in every case. A High Court judge may be able to take judicial notice of relevant international circumstances, but the court must still analyse the risk, consequences and safeguards. In this case, the county court’s limited analysis, its treatment of the FCO guidance and the absence of identified safeguards meant that the order could not stand.

• Court of Appeal (Civil Division) — Allowed the appeal, set aside the county court’s order and remitted the application to the High Court sitting in the Family Court.
• Newcastle-upon-Tyne County Court — His Honour Judge Walton granted a specific issue order permitting the mother to take the child to Iran and imposed no safeguards.