K (A Child)

In determining disputes about a child’s nationality, contact and temporary removal from the jurisdiction, the court must treat the child’s welfare as paramount and apply the welfare checklist in section 1(3) of the Children Act 1989. A child’s nationality should not be changed lightly, particularly without agreement between parents, but the court may express a welfare-based view for the Home Office, which alone decides nationality. Temporary removal requires careful assessment of the risk of non-return, the consequences of breach and the effectiveness of proposed safeguards. Where those risks are substantial and safeguards uncertain, permission should be refused. In private-law proceedings, notification to a foreign consulate is generally discretionary, although it may be appropriate where nationality is itself in issue.

The parents made cross-applications concerning their six-year-old daughter. The mother sought an order or equivalent assistance enabling an application for the child to obtain British nationality. The father opposed that application and sought permission to take the child to India for a holiday. Both parents also sought changes to the established alternate-weekend contact arrangements.

The child had been born in India but had lived in England since infancy. She was an Indian citizen with indefinite leave to remain in the United Kingdom. The central issues were the child’s welfare, the risk of non-return if she travelled to India, the appropriate contact regime, and whether British nationality would better serve her interests.

1. Welfare and nationality. The child’s welfare was paramount under section 1(3) of the Children Act 1989, together with the relevant Article 8 rights. Nationality was not to be changed lightly, especially without parental agreement. The court could not grant nationality, which was a matter for the Home Office, but could provide a welfare-based view to assist its decision.
2. Consular notification. Article 37 of the Vienna Convention on Consular Relations did not itself have the force of law in the United Kingdom because section 1 of the Consular Relations Act 1968 gave that status only to the Articles set out in Schedule 1. In private-law proceedings, notification of a foreign consulate was therefore generally discretionary and would usually be disproportionate in an ordinary residence or contact dispute. Here notification to the Indian Consulate was appropriate because nationality was directly in issue. The court nevertheless proceeded provisionally and gave the Indian authorities liberty to apply within ten days.
3. Contact. The child’s evidence and the Children’s Guardian’s assessment showed that three nights away from her primary home were difficult for her. Two-night alternate-weekend stays, together with additional contact near the alternate weekend, better served her welfare. A 50:50 shared-care arrangement was refused.
4. Removal to India. Applying the considerations identified in Re L A & B (Children) (Temporary Leave to Remain) [2016] EWHC 849 (Fam), the court found an evidence-based and very real risk of non-return. The consequences of breach would be severe because the child would be removed from her mother and established life in England. Proposed safeguards were untested and unlikely to provide effective security. Permission to remove the child to India was refused.
5. Outcome. The father’s applications for Home Office information, further evidence and temporary removal were refused. The contact arrangements were reduced and varied. Provisionally, subject to any response from the Indian authorities, the court concluded that the child’s welfare would be better served by British rather than Indian nationality.

This was a first-instance decision of the High Court (Family Division). No appellate history was stated in the judgment.