SR v MA (Temporary Leave To Remove From the Jurisdiction)

Applications for temporary removal of a child for holidays must be determined by the child’s welfare. The court should assess the magnitude of any risk of wrongful retention, the consequences if retention occurs, and the safeguards available to secure return. A Hague Convention state does not remove the need for that assessment where the evidence shows that return procedures may be slow or ineffective. Permission may be granted where the benefits of contact substantially outweigh the risks and the safeguards have a real and tangible effect in the foreign jurisdiction. Appropriate safeguards may include mirror orders, undertakings, detailed recitals, registration in relevant foreign courts and expert evidence about their practical effectiveness.

The mother sought orders permitting her ten-year-old son to spend school holidays with her in Brazil. The child lived with his father in England, having moved there in 2015. The mother had previously withdrawn Hague Convention proceedings seeking the child’s summary return, accepting that he was settled in England and should remain in his father’s care.

The parents agreed on many aspects of future contact but disputed whether the child should travel to Brazil. The court heard evidence from both parents, the child’s Guardian and an expert on Brazilian law. The central issue was whether temporary removal for holidays was in the child’s best interests, having regard to the risk of wrongful retention and the effectiveness of proposed safeguards.

1. Application granted. The court authorised the child’s temporary removal to Brazil for a holiday in the summer of 2020, subject to the registration of mirror orders in both the relevant Federal and local Brazilian courts and the mother meeting the associated costs. Thereafter, holidays in Brazil were limited to four weeks at a time.
2. The application was determined under the welfare principle and the checklist in section 1(3) of the Children Act 1989. The court assessed the case from the child’s perspective and considered the benefits of developing a full relationship with his mother and Brazilian family.
3. Following Re R (A Child) [2013] EWCA Civ 1115, the court considered three related matters: the magnitude of the risk of wrongful retention; the consequences for the child if retention occurred; and the safeguards that could be put in place before travel. Safeguards had to be capable of having a real and tangible effect in Brazil. Brazil’s membership of the 1980 Hague Convention did not remove the need for an independent risk assessment.
4. The evidence showed that Brazilian proceedings could involve substantial delay, cost and welfare-based inquiry. Nevertheless, the risk of retention by the mother was assessed as low or manageable. Her credibility, stated commitment to the child’s settled life in England, the proposed undertakings and recitals, mirror orders, registration requirements and communication between the jurisdictions provided adequate protection.
5. The child was sufficiently mature to travel unaccompanied at the proposed time, provided that the airline’s unaccompanied-minor arrangements were used. The father was to retain at least a fortnight of summer contact in England. Both parents, particularly the father as primary carer, were expected to support regular indirect contact between the child and his mother.

First-instance welfare determination. No appeal or lower-court decision is stated in the judgment.