Father wins appeal against partner taking their child to Kenya

Airport signA 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

Marilyn Stowe

The senior partner at Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.

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1 comment

Luke - September 15, 2013 at 6:52pm

“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.”
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Surely this is the key point isn’t it ? Neither parent should be allowed to take the child out of the jurisdiction of English law without the consent of the other parent.

For the sake of a holiday the Judge was prepared to risk the future of the child and her father ?

The Court of Appeal decision to prevent this is a no-brainer – my concern is that they ever needed to act in the first place. In light of such an original judgement (and many others) it seems to me the whole process of picking competent Judges needs to be overhauled.

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