S v S

In deciding whether to return a child to a foreign jurisdiction, the court must assess the practical safeguards available to protect the child’s welfare and the resident parent’s freedom and security. The court may give substantial weight to expert evidence about the likely operation of the foreign legal and social system. Undertakings or agreements provide inadequate protection where there is no realistic prospect that they will be implemented or recognised by the foreign court, or where the court finds a significant risk that they will later be frustrated. The child’s relationship with both parents remains important, but preserving contact does not require return where the safeguards necessary to make return welfare-compatible cannot be secured.

The mother applied for orders concerning the residence and welfare of the parties’ young child. The father sought the child’s peremptory return to Iran. The court heard five days of evidence, including evidence about Iranian law and conditions, and considered the parents’ relationship, the father’s conduct, proposed undertakings and the prospects of maintaining the child’s relationship with both parents.

The central issue was whether the child could safely return to Iran, either with or without the mother, in circumstances where the mother would face significant constraints and the court could not be satisfied that proposed safeguards would be implemented or respected.

1. Return application dismissed. The father’s application for the child to be returned to Iran was rejected and dismissed. The child was to remain in England.
2. The court considered detailed findings about the parents’ relationship unnecessary to determine the child’s welfare. It nevertheless found the father to be controlling and manipulative. His conduct, including the use of intimate material and threats concerning divorce and disclosure, amounted to a form of domestic violence whether or not accompanied by physical violence.
3. On the expert evidence, if the mother returned to Iran with the child while remaining married, both would probably be subject to significant influence, coercion and control by the father, supported by Iranian traditions, beliefs and courts. The mother’s ability to travel and the child’s future residence could be constrained. An Iranian court might also reconsider agreements between the parents or conditions imposed by the English court.
4. The father’s communications showed that he regarded proposed undertakings as suggestions which could not be enforced unless the child returned to Iran. The mother therefore had no sound basis for relying on them. There was no realistic prospect of adequate safeguards being agreed or implemented, and a significant and real prospect that safeguards would be frustrated after return.
5. The court did not doubt the father’s affection for the child or the importance of their relationship. It ordered residence with the mother, continued contact between father and child by Skype and in person subject to safeguards, and prohibited removal of the child from the mother’s care or the jurisdiction without written consent or prior court permission. The child was to remain a ward of court. The mother was permitted a holiday visit to America subject to an undertaking to return the child within 28 days. The father was ordered to pay half the costs of the expert evidence; otherwise there was no order as to costs. His solicitors were removed from the record.