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(Court of Appeal, Patten, McFarlane, Floyd LJJ, 6 September 2013)
The British father and mother (who was born in Kenya) were married in Kenya but moved to England where their child was born. When the parents separated the father sought a residence order and a prohibited steps order to prevent the mother from removing the child to Kenya. The mother was granted a residence order with generous contact provisions in favour of the father.
When the father renewed his application for a PSO the mother applied for a s 91(14) order. In the meantime she also made several applications to take the child to Kenya for holidays. The judge accepted that the mother was not in a position to offer a financial deposit against not returning the child and that the father would have no right to apply for a return order from the Kenyan court. However, the judge assessed the risk of the mother not returning the child was not great and granted permission to take the child to Kenya if safeguards could be imposed such as lodging the passports at the High Commission in Nairobi and a notarised agreement that the child's best interests lay in her being habitually resident in the UK.
The father's appeal was allowed. The overriding consideration was the best interests of the child. Where there was some risk of abduction to the detriment of the child the court had to be satisfied that the benefits of visiting the country outweighed the risks to her welfare. Safeguards would need to be investigated and those safeguards ought to be capable of being easily accessed by a UK-based parent. If in doubt the court should err on the side of caution and refuse to make the order. If not, very clear reasons were needed to take such a course.
In this case the judge had accepted the risk of abduction was such that safeguards were necessary but had no expert evidence which established that a notarised agreement would provide an effective mechanism to secure the child's return.
The judge had failed to investigate the magnitude of the consequences for the child if the mother failed to return the child. He had been wrong to base his conclusions solely on the mother's stated intentions. If the judge had kept the consequences for the child in focus alongside the risk of breach and available safeguards he would have been bound to conclude that the risks outweighed any benefit to the child of the holiday and declined to permit the mother's application.
The order permitting the temporary removal of the child was set aside and a prohibited steps order would be granted which prevented either parent from removing the child from the jurisdiction of England and Wales without the express agreement of the other parent or the permission of the court.
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