B v A

On an application for temporary removal of a child to a non-Hague Convention country, the child’s welfare remains the overriding consideration. The court should assess, in an integrated way, the risk that the child will not be returned, the risks to the child’s safety and security abroad, and the adequacy of any safeguards. The assessment is fact-sensitive and must take account of the evidence, the parties’ conduct and their ability to promote the child’s relationship with the other parent. An appellate court will not interfere with a first-instance evaluation of evidence and risk unless the decision is wrong, unreasonable, illogical or procedurally flawed.

The father appealed part of an order made by His Honour Judge Tolson QC in the Central Family Court. The order provided that the child should live with the mother, spend defined periods with the father, and could be taken by the mother to Iraq for up to one month at a time. The father challenged the dismissal of his application for a prohibited steps order preventing removal from England and sought retention of the child’s passport.

The appeal concerned the assessment of the risk that the mother would retain the child in Iraq, the safety and security risks in the Kurdistan region, and the safeguards required for temporary removal.

1. Appeal dismissed. The orders of His Honour Judge Tolson QC remained in force and the stay was not continued. The mother’s undertakings concerning conduct in Iraq were accepted.
2. In cases of temporary removal to a non-Hague Convention country, the child’s welfare is the overriding consideration. The court must undertake the three related assessments identified in Re K [1999] 2 FLR 1084: the risk of non-return and resulting harm, the risk to the child’s safety and security, and the safeguards required.
3. Following Re R [2013] EWCA Civ 1115, those matters must be considered against the child’s welfare. The first-instance judge was entitled to find that the risk of retention by the mother was low. He had heard both parents, considered their conduct and evidence, and was entitled to attach weight to the mother’s commitment to promoting the child’s relationship with his father.
4. The judge was also entitled to conclude that the evidence did not establish a significant physical safety risk in the Kurdistan region. The father had lived there for several years and had returned there repeatedly. Neither parent had advanced a case that they had left Iraq because of fear for their personal safety. The unchallenged expert evidence did not support the allegations of decisive family influence over the relevant courts.
5. The challenge concerning safeguards could not succeed where the father had not identified safeguards that he considered adequate and had not sought further expert evidence or an adjournment. Although additional safeguards might have been helpful, the judge acted within his discretion in deciding that they were unnecessary in light of the low retention risk. The mother’s further undertakings provided additional support for the child’s welfare and the father’s relationship with the child.

• High Court (Family Division): Appeal from the Central Family Court dismissed. The lower court’s orders remained in force, the stay was discharged, and the mother’s undertakings were accepted.
• Central Family Court: His Honour Judge Tolson QC ordered that the child live with the mother, made arrangements for time with the father, dismissed the prohibited steps application, and permitted temporary visits to Iraq.