D (A Child) (Temporary Relocation)

When deciding whether to permit temporary removal of a child to another country, the court must assess the risk of non-return, the likely consequences if the child is not returned, and the effectiveness of available safeguards and remedies. The child’s welfare remains the overriding consideration. The fact that the destination is a Hague Convention country does not remove the need to examine how effectively return orders can be enforced there. Where the evidence establishes a possible risk of non-return and serious harm if that occurs, failure to analyse enforcement difficulties may amount to a material procedural irregularity and justify appellate intervention.

The mother applied for permission to relocate permanently with the child to Japan. The Family Court refused that application but discharged a prohibited steps order, permitting temporary holiday visits to Japan for up to three weeks. The father appealed against the temporary-removal decision.

The appeal concerned whether the judge had adequately assessed the risk of non-return, the consequences for the child if he were retained in Japan, and the effectiveness of remedies available under Japanese law and the Hague Convention. Permission to appeal was granted at the hearing.

Appeal allowed. The judge had reached findings that the mother was likely, but not certain, to return the child and that non-return would have a very damaging effect on the child’s relationship with his father. Those findings required a proper assessment of the effectiveness of measures available in Japan to secure the child’s return.

1. The governing assessment for temporary removal required consideration of the level of risk that the child would not be returned, the degree of harm likely to result from non-return, and the safeguards or remedies capable of reducing that risk and harm. The overriding consideration was the child’s welfare.
2. Japan’s status as a party to the Hague Convention did not, by itself, resolve the issue. The evidence before the court raised specific difficulties concerning enforcement of return orders in Japan. Those difficulties had to be analysed, even though the destination was a Convention country.
3. The first-instance judge had considered the risk of non-return and its consequences, but had not analysed the evidence concerning enforcement difficulties in Japan. Given the findings that non-return was possible and would have a devastating impact on the child, that omission was a procedural irregularity and rendered the decision wrong for appellate purposes.
4. The High Court therefore granted permission to appeal and allowed the appeal. The relevant provisions permitting temporary removal were deleted, and a prohibited steps order was substituted, preventing removal of the child from the jurisdiction until 20 December 2019. The mother remained free to apply for earlier discharge.

1. High Court (Family Division): Permission to appeal granted and appeal allowed. The order of His Honour Judge Lancaster was varied by reinstating a prohibited steps order until 20 December 2019.
2. Family Court in Carlisle: The application for permanent relocation to Japan was refused, but the prohibited steps order was discharged and temporary holiday removal for periods of up to three weeks was permitted.