Father v Mother

Permission for a child to travel to a non-Hague Convention country depends on the child’s best interests. Where travel carries a risk of retention, the court must assess: (1) the magnitude of the risk; (2) the magnitude of the consequences if retention occurs; and (3) the effectiveness of available safeguards. The court must be positively satisfied that the benefits of travel outweigh the welfare risks. Safeguards must have a real and tangible effect in the foreign jurisdiction and be readily accessible to the parent remaining in England. An agreement recognising the child’s English habitual residence and requiring return may provide sufficient protection where expert evidence supports its likely enforcement.

The Father applied under the inherent jurisdiction for the summary return of two children to Dubai, a non-Hague Convention jurisdiction. During the hearing he abandoned that application and sought orders permitting direct contact, including travel outside England. The Mother supported contact in England but opposed travel to Dubai because of the risk that the children would be retained there.

The children had lived in Dubai throughout their childhood but had recently relocated to England, where both parents accepted that they should remain and attend school. The central issue was whether safeguards could reduce the risk of retention sufficiently to permit travel, including possible travel to Dubai.

1. The application for summary return was not pursued. The court found that the children should remain in England and that it was in their best interests to maintain a close relationship with their Father, including through travel to Europe, South Africa and potentially Dubai.

2. Applying the guidance in Re A (Prohibited Steps Order) [2014] 1 FLR 643, the court considered the magnitude of the risk of breach, the magnitude of the consequences if breach occurred, and the level of security achievable through safeguards. The risk that the Father would retain the children in Dubai was real but low. The consequences would be serious because the children wished to remain in England and retention would be exceptionally harmful to their emotional welfare.

3. The court accepted that the children had become habitually resident in England. Although their childhood had been spent in Dubai, both parents had accepted that their future was in England, and they were settled in their new home and school.

4. The principal safeguard was an agreement recording the children’s English habitual residence and the obligation to return them to England, lodged with the Dubai court. Expert evidence indicated that such agreements would normally be upheld. The court considered that the circumstances, including the parties’ expatriate status, non-Muslim status, litigation in England and the availability of this judgment, made enforcement particularly likely.

5. Once the agreement was put in place, the risk was sufficiently mitigated. The court therefore indicated that contact should proceed through visits in England and Europe, with possible later travel to Dubai, subject to pandemic-related restrictions. The precise contact order was left for the parties to agree.

First-instance decision. No prior appellate decision is stated in the judgment.