AM v DF

An application to remove children temporarily to a non-Hague Convention country requires a careful welfare assessment. The court must be positively satisfied that the benefits of the visit outweigh the risks. It must assess the risk of breach, the consequences of breach, and the effectiveness of available safeguards. Safeguards should have a real and tangible effect and be readily accessible. In most cases, their effectiveness requires competent and complete expert evidence. Where the destination is affected by social or political instability, rigorous scrutiny is essential. A disputed application should not ordinarily be determined summarily without adequate evidence, notice and a fair opportunity to respond.

The father appealed against a decision of HH Judge Tolson QC dated 9 May 2017. That decision varied a prohibited steps order and permitted the mother to take the parties’ two children to Erbil, Iraq, for four weeks during the summer. The father opposed the proposed travel because of safety concerns, the risk of retention and the absence of adequate evidence.

The decision had been made at a directions hearing. The mother had not filed the formal application or evidence previously directed, and the father had not been given a proper opportunity to respond. Before the appeal, the lower court discharged the prohibited steps order, but the merits of the proposed trip were not reconsidered. The central issues were whether the temporary removal application had been determined using the correct welfare and risk analysis, and whether it was procedurally fair to determine it summarily.

1. Appeal allowed. The decision dated 9 May 2017 permitting the mother to take the children to Erbil, Iraq, was set aside. The order discharging the prohibited steps order was stayed pending the father’s proposed appeal against that later order.
2. Applications for temporary removal to a non-Hague Convention country are governed by the children’s best interests. Where there is a risk of abduction and consequent detriment, the court must be positively satisfied that the advantages of the visit outweigh the welfare risks. It must examine the magnitude of the risk of breach, the magnitude of the consequences if breach occurs, and the level of security achievable through safeguards. Safeguards must have a real and tangible effect in the relevant jurisdiction and be readily accessible to the parent remaining in the United Kingdom. In most cases, competent and complete expert evidence is required to establish their effectiveness. If the court proceeds without expert evidence, it must give very clear reasons.
3. The risk assessment must take account not only of the parties’ evidence but also of relevant agency opinions, including Foreign and Commonwealth Office guidance. Rigorous scrutiny is especially important where the proposed destination has social and political instability.
4. Although a first-instance judge may determine child-arrangements issues summarily as part of case management, that course was inappropriate here. The judge had little or no up-to-date evidence, the mother had not complied with directions requiring evidence about travel and safety, and the father had no adequate notice or opportunity to file evidence or make full submissions.
5. The short judgment did not assess the three risk elements, the children’s welfare benefits, the effectiveness of safeguards, or the need for expert evidence. Those omissions made the decision unjust. The later discharge of the prohibited steps order did not cure the procedural and analytical defects, and the mother was not permitted to take the children to Iraq that summer.

• High Court (Family Division): Appeal from the decision of HH Judge Tolson QC dated 9 May 2017. The appeal was allowed.
• Central Family Court: The lower court had varied a prohibited steps order to permit temporary travel to Iraq and later discharged the order. The later discharge was stayed pending a proposed appeal.