Father wins appeal against partner taking their child to Kenya
A Kenyan born father has won an appeal against an order allowing his ex-partner to take their child back to the country for a holiday.
In Re A, the couple concerned were both born in the East African country and married there, later moving to England after the birth of their child. After they separated, the father applied for a ‘prohibited steps order’ to prevent the mother taking their child back to Kenya. Such orders forbid certain actions in relation to a child.
She was given residence of the child while the father was granted a ‘generous’ contact schedule.
He later renewed his application for a prohibited steps order against his former wife and she retaliated by seeking a section 91 (14) order, under the Children Act 1989. These allow the courts to order that: “no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.”
At the same time the woman made a number of applications to take their child on holiday to Kenya. At a court hearing, the judge noted that the mother could not afford to pay a deposit against not returning the child to England, and also noted that the father would have no legal right to request the return of his daughter in the Kenyan courts if the mother absconded.
However, there was no real risk of the mother not returning the child to Britain, the judge concluded, and so granted permission for the holiday provided certain safeguards were employed – depositing the passports at the British High Commission in Nairobi and entering a notarised agreement that the girl’s best interests lay in life in the UK.
The father successfully appealed. The Lord Justices Patten, McFarlane and Floyd emphasised the paramount important of the child’s best interests and welfare. If there was a risk of abduction, the courts needed to be satisfied that the benefits of visiting the country outweighed the risks.
Any safeguards put in place would need to be easily accessible by a UK parent. The courts, they declared, should either err on the side of caution and refuse to make the order, or give clear reasons for proceeding.
In this case, the Court of Appeal decided, the original judge had accepted the risk of abduction but had not properly investigated the potential consequences. There was no evidence, for example, that a notarised agreement would be an effective measure.
The Appeal Court judges concluded that the original judge should have weighed the risks to the girl of abduction into Kenya against the risk that that the mother might abscond and any safeguards available. If he had done so, he would have concluded that the risks to the child outweighed any benefits from the holiday and refused the mother’s application.
The Court of Appeal set aside the earlier order allowing the child to be taken to Kenya and instead issued a prohibited steps order forbidding either parent from taking the girl outside England and Wales without the agreement of the other or permission from the court.
Photo by faz besharatian via Flickr under a Creative Commons licence
Share this post
Get free family law updates
Marilyn Stowe’s new book: expert advice on all aspects of divorce, from just 99p!
Divorce & Splitting Up by Marilyn Stowe is the essential how-to book for anyone who is getting divorced or splitting up from a partner. Read more >>
"A must buy that really opens your eyes to what is involved if you are considering or going through a divorce." - Amanda Brown
"This will answer your questions in a way that non-lawyers can understand." - Miss P.
"Don't get divorced without it. I read this book despite being divorced for more than 10 years. I wish I'd had this book to hand at the time. Great examples, simple to read and understand." - Jamie
"This really has helped me to see that there is light at the end of the tunnel and I will come out of it a stronger person." - J
Marilyn Stowe on SKY News & ITV This Morning
Subscribe & Follow
In the Media
Marilyn Stowe is the senior partner in Stowe Family Law, which has offices in Yorkshire, Cheshire and London. With more than 30 years’ experience handling divorce cases and family law proceedings she is regarded as one of the most formidable and sought after divorce lawyers in the UK. In 2012, Marilyn became one of the first solicitors to qualify as a family law arbitrator.
All persons mentioned in the scenarios are fictitious: details have been deliberately changed in order to protect identities and other confidential circumstances of my clients. All advice and information on this blog including posts written by guest authors, is given only as a general guide to the operation of the law on the date of publication. Readers must place no reliance whatsoever on the content of this blog and must always obtain their own legal advice. Marilyn Stowe, Stowe Family Law LLP and guest authors accept no liability whatsoever arising as a result of reliance upon its content.
Contact Stowe Family Law
These downloads accompany Marilyn Stowe's latest book: Divorce & Splitting Up: Advice From a Top Divorce Lawyer. After opening, right click to save to your computer.
For more free downloads, visit the Downloads section.