M (Children) (Non-Hague Convention State)

When deciding whether a child may make a temporary visit to a state outside the 1980 Hague Child Abduction Convention and the 1996 Hague Child Protection Convention, the child’s welfare remains paramount. The court must assess three matters together: the magnitude of the risk of non-return, the magnitude of the consequences if non-return occurs, and the security achievable through available safeguards. It must not proceed on trust alone. Safeguards should have a real and tangible effect in the destination jurisdiction and be readily accessible to the UK-based parent. A locally enforceable consent order may be a proportionate and sufficient safeguard. On appeal, credibility, primary facts, expert evidence, and the weight and balance of welfare factors are primarily for the trial judge. Intervention is justified only where the conclusion was plainly wrong or not open on the evidence.

The parents, nationals of Qatar and the UAE respectively, had two young children living in England. Each sought permission for a temporary holiday with the children in the parent’s home state. Neither relevant Convention applied, and each parent alleged a risk that the children would not be returned by the other.

On 28 June 2019, HHJ Levey permitted both trips, subject to undertakings and written agreements being lodged and made orders in the UAE and Qatar. The mother appealed, challenging the requirement for a Qatari order and the permission for travel to Dubai. The central issues were the assessment of non-return risk and the efficacy and proportionality of the proposed local-court safeguards.

1. Appeal dismissed. Moylan LJ, with Lewison LJ agreeing, upheld the order permitting each parent to take the children on holiday, subject to the required safeguards.
2. Under Children Act 1989, s 1, welfare was paramount. For travel to a non-Convention state, the court had to assess together the magnitude of the risk of non-return, the magnitude of the consequences if non-return occurred, and the security achievable through available safeguards, as explained in Re A (Prohibited Steps Order) [2014] 1 FLR 643. The court should not proceed on trust alone. Safeguards should operate tangibly in the destination jurisdiction and be accessible to the UK-based parent.
3. The judge was entitled to find that wrongful retention would have catastrophic consequences, that the mother presented a low risk, and that the father presented a greater and significant risk. Those differing assessments did not prevent the judge from treating the applications consistently. He was entitled to balance the risks against the children’s benefits from visiting family, experiencing their culture and travelling to their parents’ home states.
4. The expert evidence contained uncertainty but also supported the conclusion that agreements approved by the local courts should be enforceable and binding. The appellate question was whether that conclusion was open to the judge on the evidence, not whether another conclusion was possible. The Court of Appeal could not substitute its own assessment of credibility, primary facts, weight or welfare balance, applying the approach discussed in In re J (A Child) (Custody Rights: Jurisdiction) [2006] 1 AC 80. The judge also gave sufficient reasons and was not required to repeat every evidential factor, consistently with Re F (Children) [2016] 3 FCR 255.
5. The proposed local-court orders were a reasonable and proportionate safeguard in both jurisdictions. Responsibility for implementing the order rested on the parents and, in the circumstances, their respective families.

1. Court of Appeal (Civil Division) — in [2020] EWCA Civ 277, the appeal was dismissed. The court upheld permission for holidays in Qatar and Dubai subject to local-court orders.
2. High Court of Justice, Family Division — HHJ Levey’s order dated 28 June 2019 permitted the respective trips, subject to undertakings and written agreements being lodged and made into orders of the UAE and Qatar courts.