DO & BO (Temprorary Relocation to China), Re

Permission to take children temporarily to a non-Hague Convention country depends on their welfare. The court must assess the risk of non-return, the consequences if non-return occurs, and the effectiveness of available safeguards. It must be positively satisfied that the benefits outweigh the risks. Safeguards must have a real and tangible effect in the foreign jurisdiction, and appropriate expert evidence will ordinarily be required. Where the risk is moderate, safeguards ineffective and the consequences of retention grave, the application should be refused even though the proposed visit would otherwise benefit the children. A restriction under section 91(14) of the Children Act 1989 is exceptional, proportionate and generally used sparingly, although it may be imposed pre-emptively where clear evidence shows that the child’s welfare requires it.

The mother applied under the Children Act 1989 for permission to take her two children to China for a holiday. The father opposed the application, fearing that the children would not be returned. China was not a party to the Hague Child Abduction Convention or the 1996 Hague Child Protection Convention, and the expert evidence indicated that an English child-arrangements order would not be recognised or enforced there.

The children’s guardian supported a future visit but considered that the risk of non-return was finely balanced. The court also considered whether to make an order under section 91(14) restricting further applications concerning the children.

1. Temporary relocation. The court applied the approach in Re R (A Child) [2013] EWCA Civ 1115. The decisive assessment required consideration of: (a) the magnitude of the risk that the order would be breached; (b) the magnitude of the consequences of breach; and (c) the security achievable through safeguards.
2. The court found a moderate, rather than low or high, risk that the mother would retain the children in China. Her evidence was not wholly reliable, she had comparatively few ties to England, and she retained an interest in property in China. The court accepted that there were no effective safeguards. China would not recognise or mirror the English order, and any proceedings there would involve a fresh determination under Chinese law. A financial bond, travel on British passports and renunciation of Chinese citizenship did not provide sufficient protection.
3. The consequences of retention would be devastating. The children would lose their home, school, friends, familiar culture and, above all, their beneficial relationship with their father. Although visiting China and engaging with their Chinese heritage would ordinarily promote their welfare, those benefits did not outweigh the assessed risks and consequences. Permission was therefore refused.
4. Section 91(14). The court applied the guidance in Re P (Section 91(14) Guidelines) (Residents and Religious Heritage) [1999] 2 FLR 573 and the procedural guidance in Re C (Litigant in Person: Section 91(14) Order) [2009] EWCA Civ 674. It declined to make a restriction because the issue had not been the focus of the hearing, the evidential basis was insufficient, and there was no established history of repeated unmeritorious applications. Any restriction would have required careful consideration of procedural fairness and proportionality.
5. The court declined at that stage to endorse the proposed child-arrangements order. Any further section 8 application was directed to be allocated to the judge or, in his absence, the Designated Family Judge, so that the question of a section 91(14) order could be reconsidered if appropriate.