C-W (A Child), Re

On an application for a child to spend time abroad, welfare is the governing consideration. The court must assess objectively the risk of non-return or removal, the efficacy of proposed safeguards, and the competing benefits and detriments for the child. A parent’s genuine fear is relevant only through its likely effect on the child; it must not be given overriding weight where the assessed risk is low. A mirror order in the destination jurisdiction, passport retention, undertakings and related measures may reduce the risk sufficiently to justify contact abroad. Permission may be made conditional on strict compliance with safeguards imposed under Children Act 1989, section 11(7).

These private-law proceedings concerned C-W, a child living with her father in England and Wales. Her mother, who had settled in Florida, sought permission for C-W to spend contact time with her there. A residence order had previously been made in the father’s favour after adverse findings about the mother’s reliability, but the mother’s circumstances had since changed.

The Central Family Court dismissed the application, finding that the risk of non-return was low but that the father’s genuine fears and their likely effect on C-W outweighed the benefits of contact. The mother appealed, and the father filed a respondent’s notice. The central issue was whether the welfare balance and proposed protective measures had been evaluated correctly.

1. Disposition. Sir James Munby P, with Lord Justice Richards and Lord Justice Floyd agreeing, allowed the mother’s appeal and dismissed the father’s respondent’s notice.
2. Welfare assessment. The application had to be determined by C-W’s welfare. The judge had found that the risk of non-return and removal to a third country was relatively low, that the mother was settled in Florida, and that contact would benefit C-W. The father’s genuine concerns were relevant insofar as they might be communicated to C-W and affect her security and enjoyment of the visit. They were not an independent consideration capable of overriding the other welfare factors.
3. Appellate error and safeguards. The judge had failed to bring the relevant factors into proper balance and had not assessed the safeguards objectively. A Florida mirror order obtained before travel would provide a direct enforcement remedy in that jurisdiction, reducing dependence on proceedings under the Hague Convention. Together with passport retention, travel restrictions, undertakings and an expedited return provision, the proposed protective package reduced the risk of wrongful retention or removal sufficiently for the welfare balance to favour contact abroad. The court also noted that reliance on Re R (Children: Temporary Leave to Remove from the Jurisdiction) [2014] EWHC 643 (Fam); [2014] 2 FLR 1402 was not itself erroneous because the distinction between Hague and non-Hague cases was recognised.
4. Order. Permission for C-W to travel to Florida was made conditional on prior implementation of the specified safeguards pursuant to section 11(7) of the Children Act 1989. The final order included a Florida mirror order, passport retention and return arrangements. If the parties could not agree the detailed contact arrangements, those matters were remitted to a judge or deputy judge of the Family Division.

• Court of Appeal (Civil Division): On 11 December 2015, allowed the mother’s appeal, dismissed the father’s respondent’s notice and permitted staying contact in Florida subject to safeguards.
• Central Family Court: Her Honour Judge Williams dismissed the mother’s application on 20 May 2015.