R (A Child)

R (A Child)

The judge erred in granting permission for the child to travel to Kenya in the absence of clear expert evidence that the proposed safeguards (notarised agreement and passport lodgement) would be effective in securing the child's return, and failed to keep in focus the magnitude of the consequences for the child if she were not returned. The risk and consequences required real, not illusory, safeguards, and absent such security, the order should not have been made.

Parties
Subject Child: [N] (A Girl Born on 8th October 2002); Applicant/respondent: Mother; Appellant: Father
Jurisdiction
England and Wales
Judgment Date
06 September 2013
Procedural Posture
Children Act Proceedings (appeal) / Appeal From High Court to Court of Appeal
Outcome
Appeal allowed; order permitting removal to Kenya set aside; prohibited steps order reinstated.
Legal Topics
Temporary Removal of Child From Jurisdiction, Prohibited Steps Order, Safeguards for Return From Non Hague Convention Country, Expert Evidence in International Child Cases
Family Law Child Abduction Temporary Removal of Child From Jurisdiction Prohibited Steps Order Safeguards for Return From Non Hague Convention Country Expert Evidence in International Child Cases

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Parties

[N] (A Girl Born on 8th October 2002)

Subject Child

Mother

Applicant/respondent

Father

Appellant

Procedural Posture

Children Act Proceedings (appeal) / Appeal From High Court to Court of Appeal

Legal Issues

  1. 1 Whether the judge was right to discharge a prohibited steps order and grant permission for the child to travel to Kenya
  2. 2 Whether adequate safeguards existed to secure the child's return from a non-Hague Convention country
  3. 3 Whether the judge properly assessed the risk and consequences of non-return

Ratio Decidendi

The judge erred in granting permission for the child to travel to Kenya in the absence of clear expert evidence that the proposed safeguards (notarised agreement and passport lodgement) would be effective in securing the child's return, and failed to keep in focus the magnitude of the consequences for the child if she were not returned. The risk and consequences required real, not illusory, safeguards, and absent such security, the order should not have been made.

Court Disposition

Appeal allowed; order permitting removal to Kenya set aside; prohibited steps order reinstated.

Orders

  • Order permitting the mother to remove the child to Kenya is set aside.
  • Prohibited steps order preventing removal of the child from the jurisdiction without consent or court permission is reinstated.