M v F

When deciding whether children should visit a non-Hague Convention country, the court must conduct a welfare evaluation focused on three matters: the magnitude of the risk that an order will be breached, the magnitude of the consequences of breach, and the security available to reduce those risks. Expert evidence will ordinarily be required, particularly on safeguards and enforcement. Even where relocation is agreed, the court must independently determine whether it serves the children’s welfare. A mirror order may be required as part of the protective arrangements, but need not necessarily precede relocation. Permission to visit may properly be refused where the welfare benefits are limited, the risks of non-return are low but real, the consequences would be grave, and effective security is unavailable.

The mother sought permission to relocate with the children from England, initially to Ethiopia and ultimately to Uganda. The father agreed to the relocation during the final hearing. The remaining issues concerned registration of the English order in Uganda, responsibility for travel costs, whether the father should take the children to Eritrea during contact, and whether he should hold their passports.

The children were of Eritrean origin. The father lived principally in Eritrea, while the children had lived with the mother throughout their lives. The court considered evidence concerning the recognition and enforcement of English orders in Uganda and Eritrea, the risks associated with travel to Eritrea, and the children’s welfare. The central issue was whether contact in Eritrea, and the associated passport arrangements, were in the children’s best interests.

1. Relocation and welfare. The agreed relocation to Uganda was in the children’s best interests. Agreement between the parents was a powerful indicator, but did not remove the court’s duty to make its own welfare assessment under section 1 of the Children Act 1989.
2. Registration in Uganda. The order was to be registered in Uganda, but registration was not a condition precedent to the move. The children’s welfare favoured their starting at the Ugandan school at the beginning of term. The parties were to share the ordinary registration costs; the father was to pay any additional cost of expediting registration.
3. Visits to Eritrea. The court applied the approach in Re R (a child) [2013] EWCA Civ 1115, considered with the earlier authorities. The evaluation required attention to:
   1. the magnitude of the risk of breach;
   2. the magnitude of the consequences of breach; and
   3. the level of security achievable through available safeguards.
   Expert evidence was particularly important, although its quality and availability were limited in this case.
4. The welfare benefits of visiting Eritrea existed but were limited. The risks of state intervention, refusal of an exit visa, conscription, or retention by the father were low but not negligible. The possible psychological consequences of non-return were immense, while no effective security, mirror order or financial security was available. The balance therefore clearly opposed permission to visit Eritrea. A conditional order was also inappropriate, and the issue should not be predetermined for three years.
5. Passports and contact costs. The father was responsible for all the children’s travel costs. He was not to receive their passports. The claimed practical reasons did not justify the risk of possible child-centred action with serious consequences. Contact arrangements were to be settled three months in advance, with the father selecting the flights after exchanging information about available options.