R (Children: Temporary Leave To Remove From Jurisdiction), Re

Permission to take children temporarily to a non-Hague Convention country requires a welfare assessment focused on three matters: the risk of breach, the consequences of breach, and the security achievable through safeguards. The applicant must identify the proposed safeguards and explain why they are the best available and likely to work. The court must also consider the practical difficulty of recovering the children if safeguards fail. Where the consequences of wrongful retention are profound and the safeguards are uncertain, the application should be refused, even though the proposed visit may benefit the children.

The mother sought permission to take four children to India for a holiday. The father opposed the application because India was not a party to the 1980 Hague Convention and he feared that the children might not be returned. The parties’ relationship was marked by profound mistrust, and the mother’s evidence raised concerns about her reliability and openness. The court had no expert evidence on Indian law because the Legal Aid Agency repeatedly refused authority for the necessary report. The central issue was whether the proposed safeguards and the welfare benefits of the visit outweighed the risk and consequences of wrongful retention.

1. Temporary removal. The mother’s application for permission to take the children to India was refused. The court applied the three-part approach identified in Re R (A Child) [2013] EWCA Civ 1115: the magnitude of the risk of breach, the magnitude of the consequences if breach occurred, and the level of security achievable through available safeguards.
2. The risk of wrongful retention was low but real. The consequences would be profound and life-changing, including serious damage to the children’s relationship with their father and paternal family. India’s non-participation in the Hague Convention meant that recovery would likely be lengthy, complex, costly and uncertain.
3. The applicant must specify the safeguards proposed and provide a reasoned explanation of why they are the best available and likely to be effective. The court should also consider the difficulty faced by the left-behind parent if those safeguards fail. The suggested safeguards in this case were inadequately particularised, and expert evidence would have assisted the assessment. The court declined to draw firm conclusions about the operation of section 498A of the Indian Penal Code from commentary alone.
4. The three elements had to be brought within the welfare analysis required by section 1 of the Children Act 1989, with welfare paramount and proportionality respected. Although the holiday had benefits, the consequences of retention and the uncertainty of safeguards meant that permission was not in the children’s best interests.
5. Other orders. Contact was extended, with collection from school and return by 5.00 pm on Sundays. Handover was moved from the police station to the nearest mosque, subject to parental agreement. Restrictions concerning G’s overnight care were varied, and both parents were directed to attend a Separated Parents Information Programme. A prohibited steps order restrained relocation outside Leicester and removal from the present school until specified information, consultation and police checks concerning the mother’s fiancé had been provided. The mother was given liberty to apply on 48 hours’ notice.