C v K

Permission to remove children temporarily to a non-Hague Convention country should be granted only where the court is positively satisfied that the advantages to the children outweigh the risks to their welfare. The court must assess the risk of breach, the consequences of breach and the effectiveness of available safeguards. Safeguards must have a real and tangible effect in the foreign jurisdiction and be readily accessible to the UK-based parent. In most cases their effectiveness requires competent and complete expert evidence. Where doubt remains, the court should err on the side of caution.

The mother applied to discharge a prohibited steps order preventing her from removing the parties’ two young children from England and Wales. She wished to travel with them to Algeria, a non-Hague Convention country, to visit family and expose them to their cultural background.

The father opposed the application, alleging a real risk that the mother would retain the children in Algeria. Expert evidence indicated that Algerian law would permit the mother to determine the children’s residence and that an English return order or undertaking would probably not be enforceable there. The central issue was whether travel could be authorised consistently with the children’s welfare and the parties’ Article 8 rights.

1. The application to discharge the prohibited steps order was refused. The children’s best interests were paramount under section 1(1) of the Children Act 1989, subject to an overall evaluation which also weighed the Article 8 rights of the children, mother and father.

2. Applying Re A [2014] 1 FLR 643 (sub nom Re R (A Child) [2013] EWCA Civ 1115), the court considered whether the proposed travel was in the children’s best interests. Because Algeria was a non-Hague Convention country and retention would cause obvious detriment, the court had to be positively satisfied that the benefits of travel outweighed the risks. It also had to examine safeguards capable of having a real and tangible effect in Algeria and of being readily accessed by the UK-based parent.

3. The assessment required attention to three related matters: the magnitude of the risk of breach, the magnitude of the consequences if breach occurred, and the level of security achievable through available safeguards. The expert evidence showed that the mother had custody and guardianship under Algerian law, could theoretically choose the children’s permanent residence, and could rely on Algerian orders against any English return order. An English order or undertaking would probably not be recognised or enforced in Algeria.

4. The judge accepted that the mother posed a clear risk of retaining the children and found her evidence unsatisfactory on important matters. The consequences of retention would be grave, including effective separation of the children from their home and from the father. Financial security, undertakings and the other proposed safeguards would not have a real and tangible effect in Algeria. The judge therefore could not be positively satisfied that the benefits of travel outweighed the risks. Even if less certain, the guidance to err on the side of caution would have required refusal.

5. The refusal was based on the present evidence and did not mean that the children could never visit Algeria. The application was declined and the prohibited steps order remained in force.