Family Law Hub

F v M (Temporary Leave to Remove – Alleged Risk of Onward Abduction to Non-Hague Country) [2018] EWFC 90

In a tweet: Temporarily leave to remove granted to father (“F”) to remove the children from England to France for a holiday.

  • Summary: F issued an application in which he sought permission to remove the parties’ two children to France for a holiday from 29 December 2018 to 1 January 2019. The application was opposed by mother (“M”) who alleged the children were at risk of being abducted from France to Lebanon, a non-Hague Convention country, of which F was a national. F had three uncles in France and a sister in Switzerland, as well as extended family in Lebanon, and was proposing to take the children to visit members of their paternal family in France/over the Swiss border.

    F and M had been locked in child law litigation of one sort or another since their separation in 2016, of which this was the latest application, and the children had separate representation. The judge identified them as a high conflict family, with an acknowledged resulting risk that the children would suffer emotional harm.

    Ordinarily, if the family was one of only UK and European connections, the court found that permission would have been given on the basis that the Hague Convention was available as a safeguard and means to effect a return should a parent choose not to return. Since a concern about a non-Hague country was present, the judge was required to proceed on a a more cautious footing. The approach to be taken was as set out by Mr Justice Cobb in Re H (A Child) (Temporary Leave to Remove Turkey) (Enforcement of Child Arrangements Order) [2015] EWFC 39, in which a father alleged the mother’s proposed family holiday to Turkey was a ruse in fact to facilitate the abduction of a child onwards to Iran. In those circumstances, the judge is required to assess:

    1. The risk that one parent would take the steps feared by the other

    2. That if an abduction occurred, the magnitude and the consequence of the breach

    3. The safeguards offered in order to moderate any of the identified risks.

    Applying Re M (A child) [2010] EWCA Civ 888, the judge also noted that:

    • The overriding consideration when 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

    • That safeguards can be put in place to minimise the risk of retention and that the 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

    • 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.

    In this case, no expert evidence had been made available to the court, and the judge therefore had to conclude that the consequences could not be more grave.

    Having heard evidence and built an understanding of the factual background, and M and F’s positions respectively, the judge assessed the F’s application to take the children on holiday to France to be genuine and the risk of F taking them from France to Lebanon as being “vanishingly small”. He found F to be a credible and honest witness, that he was committed to his career in England, that he did not have the required information to obtain from France a French passport for one of the children (who had only a French ID card), and assessed F as amendable to providing undertakings, to daily calls from M twice a day, and to putting the “Find My Friend” app on his phone. He found F understood and was unlikely to wish to compromise his own position and career ambitions in England by breaching the undertakings he was offering, or the terms of a court order. In contrast, the judge made findings that M was fixated on a battle with F, rather than on the needs of the children.

    Held: Permission granted to F. The risk of father travelling with the children from France to Lebanon was assessed to be negligible. Interestingly the judge suggested M might like to travel to France, staying with her own family there, and hold the travel documents for the duration of F and the children’s trip, which she declined on the basis of her own working commitments. He also found that she had not taken all the steps available to her to notify French authorities that she did not consent to any application F might make to obtain a passport for the children.

Case note, published: 23/09/2019


Published: 23/09/2019


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