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Temporary Removal from Jurisdiction Case Law

Temporary Removal from Jurisdiction Case Law

Note, the majority of the cases in this library will relate to temporary removal of children to what is referred to as a non-Hague Convention Country (e.g. countries which do not have an agreement in respect of the return of children abducted from or unlawfully retained away from England and Wales). To check whether a country is party to the Hague Convention (or Brussels Regulations which govern the return of children unlawfully abducted to / retained abroad), refer to the links below:

Thorpe LJ´s gave the following guidance when considering applications for the temporary removal and the risk of non-return. The court must consider, in addition to welfare benefits to the child of temporary removal being granted:

the magnitude of the risk of breach of the order if permission is given;

the magnitude of the consequence of breach if it occurs; and

the level of security that may be achieved by building in to the arrangements all of the available safeguards.

Re A (Temporary Removal from Jurisdiction) [2005] Fam Law 215

Where removal abroad is intended to be for a temporary period, less regard needs to be paid to the guidance in Payne v Payne.

TCM Note: Between 2011 and 2014, the guidance from the case Payne v Payne was extensively reviewed in a number of judgments (see our Leave to Remove Case Law Menu), with the court confirming that the only binding principle from that case was the ´Paramountcy Principle´ (that the child´s welfare is the court´s paramount consideration). Our Leave to Remove case law section includes the latest guidance on leave to remove, including that within the judgment of Mostyn J in NJ v OV [2014] EWHC 4130 (Fam).

The mother was Kenyan but with British citizenship, the father was British. During proceedings for residence, the mother applied for temporary leave to remove to Kenya (a non-Hague Convention Country) for the purpose of a holiday. The court granted the mother´s application and the father appealed.

The mother lacked the financial means to provide a financial security against non-return, and the father lacked the means to pursue proceedings in Kenya should the child be retained abroad. Patten LJ refers to Thorpe´s guidance in Re K (Removal from Jurisdiction: Practice) [1999] 2 FLR 1084 and that the trial judge had not given sufficient consideration to the magnitude of the consequence of non-return and the level of security that may be achieved by building in to the arrangements all of the available safeguards. He stated:

“If the highly adverse consequences for the child of a breach had been kept in focus, as they should have been alongside the risk of breach and the available safeguards, the judge would have been bound to conclude that those consequences far outweigh any possible benefits to the child from the holiday and do not justify the making of the order absent security for her return.”

Further useful guidance is given in respect of temporary leave to remove to non-Hague Convention countries:

“The overriding consideration of 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 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 an order. If the judge decides to proceed in the absence of expert evidence, then very clear reasons are required to justify such a course”

Further, clarification was given in respect of expert evidence:

“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.”

The mother had applied for the removal of a prohibited steps order in respect of her the children to Algeria. The father was concerned that the mother may not return.

The Honourable Justice Cobb held that there was a clear and identifiable risk that the mother may not return. The proposed safeguards, offered by the mother were insufficient to mitigate the risk.

Cobb refers to various authorities, but in particular Re A [2014] 1 FLR 643 (sub nom Re R (A Child) [2013] EWCA Civ 1115):

“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 (Removal from Jurisdiction: Adjournment), 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.”

A successful appeal against the lower court having granted a specific issue order allowing the mother to temporarily remove the child to Iran.

The case was remitted to the High Court.

The appeal court raised that in respect of leave to remove to a non-Hague country, the court must rigorously scrutinise an application for temporary removal of a child to a ´non-Hague Convention country´ that has no other arrangements in place for recognition or enforcement of decisions made by the courts in this jurisdiction. On the facts of this case, however, the subject matter of the application called for the expertise of the High Court.

Although such cases involve fact finding, they are often more about issues of comity, the effectiveness of diplomatic or consular assistance in the foreign jurisdiction and the relevance of the facts alleged to the risk, including issues of political and religious conflict. These issues call for the experience of a judge of the High Court and occasionally expert advice in an exceptional case.

Again, the guidance in Re R (A Child) [2013] EWCA Civ 1115 was cited:

“The overriding consideration of 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 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 an order. If the judge decides to proceed in the absence of expert evidence, then very clear reasons are required to justify such a course”

Thorpe LJ´s earlier guidance in Re K (Removal from Jurisdiction: Practice) [1999] 2 FLR 1084 was also referred to. Thorpe flagged up the need to:

the magnitude of the risk of breach of the order if permission is given;

the magnitude of the consequence of breach if it occurs; and

the level of security that may be achieved by building in to the arrangements all of the available safeguards.

´25. As the quotation from Thorpe LJ’s judgment in Re K (see paragraph 19 above) confirms, applications for temporary removal to a non-Convention country will inevitably involve consideration of three related elements:

the magnitude of the risk of breach of the order if permission is given;
the magnitude of the consequence of breach if it occurs; and
the level of security that may be achieved by building in to the arrangements all of the available safeguards.
The risks in this case of the child not being returned to the UK were low, but did exist. The ´magnitude of the consequence of breach´ especially in light of the proposed holiday destination being a non-Hague Convention Country (albeit from our experience, retrieval from countries which are a party to the Hague Convention can be equally difficult, and information from the charity REUNITE can be useful evidence in the absence of expert reports).

The gatekeeping decisions in this case also highlight that leave to remove proceedings (temporary or otherwise in our opinion) involving non-Hague Convention countries are best heard in the High Court due to complexity.

Bellamy J discusses the 2013 Standard Civil Contract in terms of funding for expert evidence (in this context, expertise in relation to foreign jurisdictions) and criticises the Legal Aid Authority’s (LAA) decisions in relation to funding applications for this purpose. He also highlights the problems with delays and difficulties in securing such funding AND involved in securing such expertise.

TCM Comment: While it may seem that such expertise is essential in determining cases where temporary leave to remove from the jurisdiction is sought to non-Hague Convention countries and there is risk of non-return, compliance with the Hague Convention among signatory states may also be an issue, can be variable, and knowledge of the foreign authority and their application of the law is essential, based on practical realities. This can only be gained by reference to people with specific jurisdictional expertise and experience.

Similarly, particular risks of travel to countries should be considered, as well as family history in relation to specific risks which may be encountered by family members where parties ventured to the UK for asylum (and similar reasons).

For the Lay Advisor, as a first step, ensuring their client refers to the charity Reunite and the Foreign and Commonwealth Office is strongly advised.

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