F v M & Anor.

Applications to remove a child temporarily to a non-Hague Convention country are determined by the child’s best interests. Where there is a risk of retention, the court must assess the magnitude of the risk, the consequences if retention occurs, and the security provided by available safeguards.

The court must be positively satisfied that the advantages of the proposed visit outweigh the welfare risks. Safeguards must have a real and tangible effect in the foreign jurisdiction and be readily accessible to the UK-based parent. In most cases their effectiveness should be established by competent, detailed expert evidence. If the court remains in doubt, it should refuse the order.

The applicant father sought permission under the Children Act 1989 for his eight-year-old son to travel from England to Saudi Arabia for a two-week holiday. The mother and the child’s guardian opposed the application.

The father lived and worked in Saudi Arabia and had previously retained the child in breach of court orders. Expert evidence addressed the absence of effective legal safeguards for securing the child’s return. The central issues were the risk of retention, the consequences for the child’s welfare, the available safeguards, and whether the benefits of the proposed visit outweighed those risks.

1. The application for permission to remove the child temporarily to Saudi Arabia was refused. The court applied the approach stated in Re R (Prohibited Steps Order) [2014] 1 FLR 643 and set out in AB v TB (Temporary Removal to Jordan) [2014] EWHC 4663 (Fam).
2. The overriding question was whether the proposed order was in the child’s best interests. The court had to assess three inter-related matters: the magnitude of the risk of breach, the magnitude of the consequences of breach, and the level of security achievable through safeguards. The welfare checklist in section 1(3) of the Children Act 1989 informed that assessment.
3. Safeguards had to be capable of having a real and tangible effect in Saudi Arabia and of being readily accessed by the mother. Following the guidance in Re K (Removal from Jurisdiction: Practice) [1999] 2 FLR 1084, their effectiveness ordinarily required competent and complete expert evidence. The court should err on the side of caution if their effectiveness remained uncertain.
4. There was a substantial and significant risk that the father would retain the child. That conclusion was supported by his settled life and close connections in Saudi Arabia, the history of two previous retentions, the continuing parental and family conflict, and concerns about his credibility.
5. Retention would cause substantial harm, including separation from the child’s mother, home, school and established social and emotional environment. No realistic or legally enforceable safeguard was available. The proposed benefits of visiting the father and paternal family in Saudi Arabia therefore did not outweigh the risks.
6. The child’s clear wishes and feelings not to travel were relevant under section 1 of the Children Act 1989. They were not determinative by themselves, but they materially weighed against permission. Existing stepped contact arrangements within England were maintained, and the question of any future restriction on applications under section 91 was left for a later hearing.