CD v EF (Temporary Relocation)

An application under Article 21 of the 1980 Hague Convention is governed by the child’s welfare under Children Act 1989, s 1. The principles governing temporary removal apply to Hague Convention countries, but the Convention’s return machinery ordinarily reduces the risks associated with wrongful retention. The court must assess the risk of breach, the consequences of breach and the effectiveness of available safeguards. A child’s clear and genuinely held objection, the need to rebuild trust, and the absence of reliable expert evidence concerning return mechanisms may make removal premature. A parent’s breach of financial orders does not ordinarily justify a Hadkinson order preventing consideration of a child-arrangements application, although the breach may bear directly on welfare and compliance risks.

The applicant father sought arrangements for direct contact with his 11-year-old son under Article 21 of the 1980 Hague Convention. The father proposed contact in Japan. The mother proposed contact initially in England, while contact in France was considered as a third option. The child wished to see his father but did not wish to travel to Japan and feared that he would not be returned.

The father was in substantial arrears under English financial remedy orders and refused to return to England while enforcement, including a judgment summons, remained possible. The central issues were whether contact should take place in Japan, England or a third country, and whether the father’s financial breaches affected his application.

1. The application was governed from first to last by the paramountcy principle in Children Act 1989, s 1(1), having regard to the welfare checklist in s 1(3). Article 21 imposed facilitative rather than judicial duties on central authorities, so the application was dealt with in the same way as an application under s 8 of the Act.

2. The principles governing temporary removal to a non-Hague Convention country applied, with necessary adaptation, to removal to a Hague Convention country. The court had to consider: the magnitude of the risk that the order would be breached; the magnitude of the consequences if it were breached; and the level of security achievable through safeguards. The availability of the Hague Convention ordinarily reduced each risk, but did not eliminate the need for evidence about how return procedures would operate in practice.

3. Contact in Japan was premature. The child’s clear and genuinely held wishes, the need to rebuild his relationship and trust with the father, the father’s past non-compliance with financial orders, and the absence of suitably independent expert evidence about Hague return procedures and mirror orders outweighed the benefits of immediate travel to Japan.

4. A Hadkinson order was refused. Although raised late, the principal reason was that it would not ordinarily be appropriate in child-arrangements proceedings to prevent a parent pursuing contact because of breaches of financial remedy orders. The child’s welfare remained paramount. The breaches nevertheless gave legitimate cause for concern about compliance with a child-arrangements order, particularly in Japan.

5. Contact in England was preferred, but the parties’ impasse made it impracticable because the mother would not refrain from seeking imprisonment-related enforcement and the father would not enter England. Contact was therefore ordered in France, subject to safeguards including passport lodging, travel with the mother if desired, applicable Hague and Brussels II Revised mechanisms, and payment of travel and accommodation costs by the father. Weekly indirect contact and Japanese lessons were also directed.