M (A Child) (Temporary Removal to Kurdistan)

When deciding whether to restrain a child’s temporary removal from the jurisdiction, the child’s welfare is paramount. The court must balance the benefits of the proposed visit, including family and cultural relationships and Convention rights, against the real risks to the child’s health, safety and wellbeing.

The court should assess: the nature and magnitude of the risk; the consequences if it materialises; and the safeguards available to reduce the risk and secure the child’s return. Current, child-specific evidence is required. Where the risk is significant, the possible consequences grave, and safeguards cannot reduce it to an acceptable level, the benefits of the visit may be outweighed and a prohibited steps order made.

The father applied for a prohibited steps order and continuation of a passport order and port alert to prevent the mother taking their twelve-year-old daughter, M, to Sulaymaniyah in the Kurdistan region of Iraq for a family reunion and holiday.

The parents were Iranian Kurds with refugee backgrounds. The father relied on terrorism, kidnapping and political-association risks, supported by Foreign and Commonwealth Office guidance. The mother opposed the application and relied on the proposed family reunion, M’s wishes, and authorities concerning travel and conditions in Iraq and Kurdistan.

The central issue was whether the proposed trip was in M’s best interests having regard to its benefits, the risks, and available safeguards.

1. Application granted. The court refused permission for M to travel to Kurdistan and continued the protective arrangements sought by the father.
2. Under Children Act 1989, section 1(1), M’s welfare was the paramount consideration in deciding whether to make a prohibited steps order and when exercising the inherent jurisdiction. The court also applied the welfare checklist in section 1(3).
3. The court balanced the benefits and detriments of the trip. Those benefits included M’s wishes, cultural needs and relationship with her extended maternal family. The analysis also gave significant weight to the mother’s and M’s rights to respect for private and family life under Article 8 of the ECHR.
4. The court applied the three-stage discipline identified in Re R (A child) [2013] EWCA CIB 115: assess the extent and magnitude of the risk; assess the extent and magnitude of the detriment if it materialises; and identify safeguards capable of minimising the risk and securing M’s return.
5. The Foreign and Commonwealth Office guidance was not treated as determinative or mandatory. It was nevertheless important evidence of current terrorism, kidnapping and security risks. Earlier expert material and authorities concerned materially different contexts or outdated conditions and could not establish that the present trip was safe.
6. The court found a real and significant risk to M, with possible consequences including severe physical or psychological injury or death. The mother could not reduce the risks to an acceptable level. The benefits of the proposed holiday therefore did not outweigh the risks.

First-instance decision. The judgment records earlier ex parte and return hearings before Jackson J and Moylan J concerning the passport order and port alert, but no appellate decision.