MG v JH

When deciding whether a child should travel to a country where there is a risk of non-return, the court must assess the potential harm, the magnitude of the risk and the safeguards capable of removing or reducing it. Some degree of risk may be acceptable where travel would benefit the child, but the assessment must be case-specific.

The child’s wishes and feelings are relevant but are not decisive. Their weight depends partly on the strength and authenticity of the wishes and the extent to which they may have been influenced by others. A former guardian should ordinarily remain involved unless there is a solid, objective reason for replacement.

The mother sought permission for the child, aged about 12½, to accompany her on a holiday to Mexico. The child had previously been retained in Mexico for several years before being returned to England following extensive litigation. The mother relied on changed personal circumstances and the child’s relationship with her Mexican grandfather and wider family.

The court considered the risk of renewed retention, possible safeguards, the child’s wishes and feelings, and the appropriate role of CAFCASS. The hearing was inconclusive, and the central issue was whether the application could properly be determined before further evidence and safeguards were available.

1. Guardian. The court directed that the child be represented by a CAFCASS guardian and, if possible, by the former guardian. A guardian must independently ascertain and faithfully report the child’s wishes and feelings, but must then make objective recommendations about the child’s best interests. A previous recommendation contrary to the child’s wishes was not a disqualifying reason. Ordinarily, an allocated CAFCASS officer should remain involved unless there is a solid, objective reason for substitution.
2. Risk of non-return. The court identified three linked questions: the magnitude of the harm if the child were retained abroad; the magnitude of the risk of non-return; and the extent to which case-specific safeguards could remove or minimise that risk. In this case, renewed retention could cause catastrophic harm to the child’s relationship with her father. The court did not determine the actual level of risk at this hearing.
3. Safeguards. Any future permission would require substantial protective measures, including a carefully drafted mirror order, the removal of an existing Mexican agreement inconsistent with the child’s residence in England, and a substantially larger financial bond than the sum offered. The court also considered live evidence from the maternal grandfather necessary because of his alleged involvement in the earlier retention.
4. Wishes and feelings. The child’s wishes and feelings were relevant under Children Act 1989, section 1(3), but were not decisive because she could not assess the risk of non-return. Their significance would depend on how strongly she wished to travel and whether her wishes were authentically her own or influenced by others.
5. The court adjourned the matter. It was inappropriate to make an abstract conditional order several months before the earliest possible travel date, when circumstances, evidence and safeguards might change. Further directions and a final hearing were listed.

The judgment describes earlier proceedings concerning the child’s return from Mexico and a later decision not to order a section 7 inquiry. No appellate history is stated.