X v Y (Child Arrangements Order)

Permission to appeal should be granted where the proposed appeal has a real prospect of success, or where another compelling reason exists, including procedural irregularity. An interim child arrangements order should not be made to facilitate foreign travel where the issue was not properly before the court and the legal consequences of the order have not been considered. Once permission is granted, the appellate court may determine the immediate welfare issue proportionately. The child’s welfare remains paramount. A proposed foreign holiday may be permitted where the evidence and safeguards show minimal risk of non-return and the objections do not provide a rational welfare-based reason for refusal.

The father appealed, or sought permission to appeal, an interim order made by HHJ Tolson QC at the Central Family Court on 25 July 2019. The order varied existing child arrangements and included a live-with provision intended to enable the mother to take the child on a two-week holiday in Europe. The father challenged the procedure, the opportunity given to him to present his objections, the absence of adequate welfare analysis, and the decision to permit travel. The hearing before Theis J concerned both permission to appeal and a stay. The central issues were whether there was a real prospect of successfully challenging the interim order and whether the proposed holiday should proceed.

1. Permission to appeal. Under Part 30 of the Family Procedure Rules 2010, permission depended on whether the appeal had a real prospect of success or there was another compelling reason. Rule 30.12(3) permitted intervention where the decision was unjust because of procedural irregularity. Permission was granted in relation to the live-with order.
2. The order had not been sought or properly investigated as an issue for determination at the hearing below. The court had not adequately considered its implications, particularly its relationship with the detailed 2017 child arrangements order and which provisions remained operative. There was therefore a reasonable prospect that an appeal would succeed.
3. Determination of the holiday issue. The appellate court could determine the proposed trip proportionately after granting permission. The child’s welfare was the paramount consideration. The history included regular foreign travel without any demonstrated failure to return the child.
4. The existing safeguards, together with further safeguards offered by the mother, substantially reduced the risk of non-return. These included evidence of the return flight and holiday address, confirmation that the nanny would attend and hold the passport, an undertaking that the child would not spend a night away from the holiday address, security arrangements, and an Annex 2 certificate enabling protective steps under the Hague Convention or BIIIR.
5. The father’s wider psychological and emotional objections did not provide a rational basis for refusing the trip. His stated position was that he objected to travel abroad rather than to a comparable holiday within the jurisdiction. The distinction did not materially affect the child’s welfare. The proposed holiday met the child’s welfare needs and could proceed subject to the agreed safeguards.

• High Court (Family Division): Permission to appeal granted in relation to the interim live-with order. The High Court determined the proposed foreign holiday issue and permitted the trip subject to safeguards.
• Central Family Court: HHJ Tolson QC made an interim child arrangements order on 25 July 2019, varying the earlier arrangements and including a live-with provision intended to facilitate the mother’s holiday abroad.