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England and Wales Family Court Decisions (other Judges) |
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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> B v C (temporary leave to remove to non-Hague Convention country) (Rev 1) [2017] EWFC B97 (12 December 2017) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2017/B97.html Cite as: [2017] EWFC B97 |
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IMPORTANT NOTICE This judgment was delivered in private. The judge has given leave for this redacted version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child and members of his family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
IN THE FAMILY COURT SITTING AT OXFORD Case no.: OX16P00237
IN THE MATTER OF THE CHILDREN ACT 1989 AND IN THE MATTER OF A
Date: 12th December 2017
Before:
Her Honour Judge Vincent
Between :
B
Applicant mother
and
C
Respondent father
Hearing dates: 27th June, and 20th, 21st and 22nd November 2017
JUDGMENT
Introduction and background
Issues between the parties
(i) The mother's application for permission to take A on holidays including to non-Hague Convention countries including Country X;
(ii) The father's application for a child arrangements order that divides A's time broadly equally between his parents.
The law
'The overriding consideration for the Court in deciding whether to allow a parent to take a child to a non-Hague convention country is whether the making of that order would be in the best interests of the child. Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the Court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail. This will therefore routinely involve the Court in investigating what safeguards can be put in place to minimise the risk of retention and to secure the child's return if that transpires. Those safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by the UK-based parent.'
'Although, in common with Black LJ in Re M, we do not say that no application of this category can proceed in the absence of expert evidence, we consider that there is a need in most cases for the effectiveness of any suggested safeguard to be established by competent and complete expert evidence which deals specifically and in detail with that issue. If in doubt the Court should err on the side of caution and refuse to make the order. If the judge decides to proceed in the absence of expert evidence, then very clear reasons are required to justify such a course.'
'.. Applications for temporary removal to a non-Convention country will inevitably involve consideration of three related elements:
a) The magnitude of the risk of breach of the order if permission is given;
b) The magnitude of the consequence of the breach if it occurs; and
c) The level of security that may be achieved by building in to the arrangements all of the available safeguards.
'So having indicated that it is possible for the children's legal position in Jordan to be protected to a large but not complete extent, Mr Edge finally observed that in reality in these cases the main safeguard for the children is this court's assessment of the credibility of the applicant. That is a conclusion that he has reached having been involved in many such cases.'
AB v TB (specific issue order) [2014] EWHC 4663 (Fam), paragraph 34
Evidence
YY
The mother
Father
'Of course the risk that any person, child or adult, might be caught up in terrorism is almost a worldwide phenomenon these days. The fact that very, very few people in fact suffer physical harm from terrorism does not diminish its power to upset and disturb. …
I am not in these cases especially influenced by the Foreign Office guidance which must apply to people regardless of their backgrounds. To say to somebody that they should not take their children on holiday to a country that is experiencing unrest might be a very strong argument if they were going there purely for pleasure, but it has to be looked at in context if you are in fact addressing a family who originate there and who may have entirely different needs.'
EB
Welfare checklist
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
'I think that there is a really significant issue around who is in charge, and who is having the largest or smallest percentage, and there's lots of disputing where he stays, where he doesn't stay, who's allowed to make what decision, who's allowed to make whichever other decision. And I think that lies very much at the crux of this matter. Yes, the current issue is about foreign holidays, but also, there is a long history about the parents disputing what the arrangements should or shouldn't be on various given days.'
'All I would end with is a request to both you and C that at some stage this point-scoring stops, because the endless war of attrition between you and your former wife is beginning, it seems to me, to impinge upon A. And the older he gets, the more aware he will become of how much distrust, bitterness, enmity there is between you two. It is a deplorable situation for any nine-year old child.'
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(i) The magnitude of the risk of breach of the order if permission is given;
(i) A is a British citizen, nearly ten years old. He has lived all his life in this country, and is settled at school and at home, with a strong network of family and friends around him. He is articulate and intelligent. He has expressed a desire to go on holiday to Country X but there is no evidence at all to suggest that he has any notion that it would be a nice idea to live there or that this is an idea that has ever been canvassed with him by his mother;
(ii) In my judgment A's mother is demonstrably child-focused and respecting of A, his relationship with his father, his interests, his education, his friendships, and the life that he has been given up until now. While she wants him to know his Country X family and heritage, she has consistently promoted his relationship with his father, and she recognises that A's education and health needs are best met in this country;
(iii) My assessment of the mother is that she is a credible and truthful witness and I accept her evidence that she has no intention of relocating with A whether to Country X or elsewhere in the world;
(iv) There is no evidence that the mother has breached any Court order. She made it clear that if she were not given permission to move to Country X with A then she would wish to remain living in England with him. When the Cafcass officer recommended against permanent relocation she was accepting of the recommendation and sought permission to withdraw her application;
(v) Until the end of 2013 she had travelled abroad many times with A. While the length of some of these trips may have made the father uneasy, he agreed to them all and there is no evidence that she ever came back later than she said she would or travelled with A anywhere other than where she had told his father they would be;
(vi) She was the keeper of A's passport until November 2014. She made no attempt to use it to travel abroad with A during 2014. Had she wanted to abduct him she had the opportunity but she never took it;
(vii) In 2015 she did obtain the mirror order at significant personal expense as requested, but because the dates of the holiday had passed, she did not even try to use it;
(viii) She has lived in England for fifteen years. She is a British citizen. She has a business that is registered in this country. She has a network of friends here, in particular her close friend S who has a son A's age. In my judgment it is incredible that the mother would wish to turn her back on the life she has made in this country in order to deprive her son of his relationship with his father;
(ix) I am not satisfied that the mother has ever sought to undermine that relationship, rather she has promoted it;
(x) The father asserts that she is controlling of contact, but I have not been satisfied that there is any evidence of an occasion when she has ever kept A without his father's agreement, or prevented him seeing his father;
(xi) My assessment of the father is that he has been 'uneasy' and 'nervous' about his son being away from him for a long time and that he didn't like it when A was away for a long time, but I am unpersuaded that he genuinely fears the mother would not come back to England.
(ii) The magnitude of the consequence of the breach if it occurs
(iii) The level of security that may be achieved by building in to the arrangements all of the available safeguards.
• It would be a condition of travel that the mother had provided flight details, and details of the address where she and A were staying;
• The father would be permitted to have facetime/skype contact with A once or twice during a two week holiday;
• In the first instance trips abroad could be limited to two weeks;
• The mother would provide an undertaking to the Court that she would return A to the jurisdiction at the end of any foreign holiday;
• It could be recorded as a recital to the order the Court that she would spend each night of the holiday with A (I do not mean that she would never go out for an evening and leave him with relatives or a babysitter, nor that he might never go on a camping trip or sleepover for a night with cousins or friends when on holiday, but that generally he and his mother would be staying in the same location);
• The mother would provide an undertaking to the father that A will attend primary and secondary school in England and that she would not change his school without agreement of the father.
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
Child arrangements order
Holidays abroad
Joanna Vincent
HHJ Vincent
12th December 2017