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Family Law

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Court of Protection Practice and Procedure Conference 2016

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09 JUL 2009


(Family Division; Sir Christopher Sumner; 3 July 2009)

The Indian mother came to England to marry the father. While living with the paternal grandparents, the mother took the child to India on three separate occasions, with the father's consent. However, on the last visit, which was for a family engagement celebration, the mother was one month late in returning, and when she did come back to the UK, instead of returning to the home of the paternal grandparents, she found separate rented accommodation. The father obtained a without notice order prohibiting the mother from removing the child from the jurisdiction and from returning to India without his consent. The mother subsequently sought consent to be permitted to take the 3?-year-old child to India for one month, for a family wedding. She explained her delay in returning on the previous occasion as the result of her uncertainty as to whether she would return to the home of the paternal family, and her need to make alternative arrangements. The mother was working part-time.

The court had to assess the risk of the mother failing to return the child to the jurisdiction. On the evidence the father had not been open and straightforward with the court, failing to explain that he had withdrawn himself from family life for about a year, and had not maintained contact with the child during this period. The mother's explanation for the delay in returning was accepted. Given the father's failure to keep in touch with the child, and his willingness in the past to let the child go to India for even longer periods, there was no disadvantage to the proposed trip to India. Notwithstanding the lack of support for the mother in England, her lack of money and her problems with the paternal family, the risk that the mother would not return the child was very low indeed. The mother was unable to provide financial guarantees, although the maternal family's offer to lodge the title deeds to their Indian property with the court was evidence of their good faith. There was to be a declaration at the start of the order granting permission for the child to leave the jurisdiction for a specified period, and setting out the child's British citizenship and habitual residence in England. The mother's parents were to provide a signed statement to the same effect, stating that they would do nothing to encourage the mother to stay longer and would do their best to ensure that the child returned to the country by the due date. The mother was to give undertakings that she would return, that she would provide the father with copies of the return tickets and a full itinerary, that she would not seek to obtain an Indian passport for the child without giving the father at least 2 months' notice, that any tourist visa for the child would be copied to the father, and would be for the shortest possible period, that she would not permit the child to return to India without consent, that the passports would be returned to the solicitors on return to the jurisdiction, and that she would not take any proceedings in any court in respect of the child, save for the English High Court, until after the child had returned to the jurisdiction.

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