Father v Mother & Anor

In determining future child arrangements, the court must apply the child’s welfare as the paramount consideration and make a proportionate, least interventionist order meeting the child’s welfare needs. A previous refusal to order a child’s permanent return under the Hague Convention does not determine a later application for holiday contact abroad where the proposed arrangement ends with the child’s return to the primary carer. For an autistic child who benefits from predictability, contact should increase gradually and significant changes should be explained and managed carefully. Safeguards may include registration of the order abroad, undertakings, passport arrangements and a financial bond. The court must also weigh the child’s Article 8 rights against those of the parents.

The father applied under article 21 of the Hague Convention to extend his contact with the child, including holidays in Europe and the United States. He also sought renewal of the child’s United States passport without the mother’s consent and continuation of passport and port-alert restrictions. The mother opposed contact abroad because of a perceived risk that the father would retain the child in the United States.

The child had previously not been returned to the United States in Hague Convention proceedings because of the grave risk identified if he were separated permanently from his mother. The present proceedings concerned future contact arrangements, safeguards and the child’s welfare, rather than permanent return.

1. Welfare and proportionality. The child’s welfare was paramount. The court applied the welfare checklist, the presumption that birth parents should be involved in a child’s life, and the requirement to make a lawful, necessary and proportionate order under Article 8. The child’s Article 8 rights took priority over those of his parents, while requiring a balancing exercise.
2. The earlier Hague Convention decision did not bind the court. That decision concerned permanent return to the United States without the mother. The present application concerned holiday contact which would end with the child’s return to the mother’s care.
3. The child had autism spectrum disorder and needed predictability, continuity and sameness. Consistently with the professional evidence, contact should be built up gradually. Changes to routine or circumstances should be explained and managed with care. Contact was increased incrementally, with three periods of direct contact each year and longer summer contact over time.
4. The child would be permitted to visit Europe in summer 2027 and the United States in or after summer 2028, subject to safeguards. These included enrolment of the order in the United States, travel and accommodation information, return tickets, appropriate undertakings, passport arrangements and a bond equivalent to US$25,000.
5. The mother’s consent to renewal of the child’s United States passport was dispensed with. The child’s port alert was continued for 12 months. The mother’s passport was to be returned and the restrictions preventing her from travelling were discharged.
6. The court made the proposed prohibited steps orders. The parties were expected to improve communication and co-parenting, avoid oversharing adult disputes with the child, and support meaningful and lasting relationships with both parents and their extended families.

Not stated in the judgment. This was a first-instance decision concerning future child arrangements and related protective measures.