MGB v GT

An order permitting the temporary removal of children from the jurisdiction is a paramount welfare decision. The court must conduct a fair process, consider the welfare checklist, and evaluate the risk of non-return, the consequences if non-return occurs, and the safeguards available. Hague Convention remedies may reduce the risk and consequences, but do not remove the need for evidence and evaluation. An order made without adequate notice or evidence, and without addressing those matters or the children’s wishes and feelings where relevant, may be both wrong and unjust for serious procedural irregularity.

The mother appealed against a Family Court order permitting the father to arrange for the two children to visit and stay with their paternal grandparents in Ukraine. The order had been made at a hearing listed principally to consider whether the children should be joined as parties. No application for temporary removal had been issued, and there was no supporting evidence or Cafcass report addressing the proposed holiday, the risk of non-return, safeguards, or its impact on the children. The central issues were whether the process was fair and whether the judge had properly applied the welfare checklist and the principles governing temporary leave to remove.

1. The appeal was allowed. The order of 10 March 2020 was discharged. The issues of temporary leave to remove the children to Ukraine and the wider child arrangements were remitted to the Central Family Court for directions before a Circuit Judge.
2. Under FPR 30.12(3), an appeal may succeed where the decision was wrong or unjust because of procedural irregularity. Relevant instances include an error of law, a factual conclusion unavailable on the evidence, failure to give proper weight to a significant matter, an unfair process, or an exercise of discretion outside the range of reasonable disagreement.
3. Applications for temporary leave to remove are paramount welfare decisions. The court must undertake a proper process and consider the welfare checklist. It must evaluate the magnitude of the risk that the children will not be returned, the consequences of non-return, and the security or safeguards available. The existence of Hague Convention remedies may reduce the risk and consequences, but does not dispense with the need to consider the evidence.
4. The first-instance decision had been made without notice of a properly formulated removal application, without evidence about the proposed arrangements or safeguards, and without a fair opportunity for the mother to present her case. The judge had not properly addressed the risk of non-return, the possible harm to the children, or the safeguards.
5. The judgment also failed to engage adequately with the children’s wishes and feelings and the likely emotional effect of the proposed order. In the circumstances, it would have been highly unusual to make the order without obtaining their views or explaining why their views should not be obtained through Cafcass or a guardian.
6. A guardian was directed to be appointed under FPR 16.2 and 16.4, and the matter was to be listed for a one-hour directions hearing.

• High Court (Family Division): The appeal from the final decision of HHJ Hughes QC in the Family Court was allowed. The order permitting temporary removal was discharged and the relevant issues were remitted to the Central Family Court.