Father allowed to take son to non-Convention country

family life

Mr Justice Peter Jackson’s judgment in W (A Child: Temporary Removal From the Jurisdiction) was handed down in April last year, although it has only just appeared on Bailii. Whether it has previously been published elsewhere, I do not know.

As its name suggests, the case concerned an application by a parent for permission to temporarily remove a child from the jurisdiction. The particular complication here was that the country to which the parent proposed to take the child is not a signatory to the Hague Convention on child abduction. This means that if the child is not returned to this country then the other parent will not be able to use the Hague procedure to secure a summary return, and could have considerable problems in securing the return. This is a difficult area, which I wrote about here last August, in the context of a Scottish court decision relating to a father’s application for permission to take his two sons on regular visits to Algeria.

The facts of the case set out in Mr Justice Jackson’s judgment are somewhat limited, in order to prevent identification of the family. What we are told is that it was an application by a father for permission to take his five year old son on regular holidays to his home country. We are not given the identity of that country, but we are told that the father is of Muslim Asian heritage. The application was opposed by the mother.

We are given very little background, but it appears that the parents were married, and lived in this country. When they separated the child remained with the mother, and at the time of the hearing he was living with the mother and his maternal grandmother, and having fortnightly contact with the father.  There were some signs that the boy may fall somewhere on the autistic spectrum, but at the time of the hearing this was uncertain, while further testing took place. The father had remarried, and lives in this country with his new wife and their son.

The father’s application was actually issued in April 2014. For some reason the application took until March 2015 to reach a final hearing. That hearing was before a deputy district judge, who allowed the father to take the boy abroad during his holiday periods, to any destination except the home country. The father appealed, and his appeal was successful. The hearing before Mr Justice Jackson was a re-hearing of the application. On a point of procedure, Mr Justice Jackson pointed out that applications for permission to remove a child to a non-Convention country are sensitive and often difficult, and should never be allocated to a district judge, let alone a deputy district judge. It should have been referred to the Designated Family Judge who, Mr Justice Jackson felt sure, would have made a direction that it be dealt at High Court level, perhaps by a Circuit Judge sitting as a deputy.

So to the re-hearing.

The father argued that he was now firmly rooted in this country, both by his career and his new family. He said that he had no intention whatever of retaining his son abroad: it would be ruinous for him personally and professionally and anyhow he would regard it as being wrong because it would deprive his son of his mother’s care. He gave sworn undertakings that he would return the boy, and offered a sum of money as a bond, which would be a ‘fighting fund’ for the mother in the event of a failure to return.

The mother opposed the application for a number of reasons, including a fear that the boy would not be returned. She was also worried about the security situation in the father’s home country, and generally that the boy might get into difficulties if she were not there to help him.

Mr Justice Jackson found that the risk of the father not returning the boy was “non-existent”. He had had him in his care regularly since he was a baby. He had travelled abroad with him previously to other countries and could easily have taken him from there to his home country, if he was minded to. Mr Justice Jackson also accepted the father’s evidence regarding being rooted here, and returning the boy. As to the security issue, Mr Justice Jackson was not overly concerned, noting that there was no report of any attempt to threaten the security of the father’s family in the home country, and concluding that the risk was far outweighed by the advantages to the boy of having his own experience of his paternal heritage.

Accordingly, the father was granted permission to take the child for holidays to his home country, on an ongoing basis.

The full report of the case can be found here.

Photo by Robert Alfers via Wikipedia 

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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3 comments

Brian - April 2, 2017 at 11:50pm

Nothing new to think the worst of a father without any evidence or any substantial evidence at that to support unfounded exaggerated and anxiety based claims and refusals by a parent with care! It is pointless asking for permission to take a child out of the country if the answer is going to be “no” regardless of the circumstances – talk about preprejudice and think the worst of dads from the outset! Add insult to injury by allocating a judge of insufficient seniority to the case in the first place. It’s about time such blunders were addressed with punitive or administrative measures awarded to judges that fail in their duty to dispense justice correctly. There is far too much arrogance in the judiciary and as a result, insufficient care or safeguarding of authority is taken where real power is being exercised. Everyone else in society is made fully responsible for the decisions they take. It is about time judges were held to account instead of harping on about how much government should back them up to the hilt for upholding the law which they not infrequently – get wrong. If anyone is going to abduct a child, they certainly are not going to draw attention to themselves by making a family court hearing, they are just going to scoot off. You can’t do
right for not doing wrong is just about the norm for non resident usually male parents, for which the recent press highlighted perpetrators of child abductions have been mothers. I can only go on the fact that the knowledge of them is only a result of the lifting of reporting sanctions in the limited number of cases (two) I am aware of. More reasons for family law to be seen to be done publicly. I would much prefer to be in possession of facts to suggest otherwise, it would be easier then to accept the general perception and unconscious bias that fathers are the “baddies” in family law.

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Andrew - April 7, 2017 at 12:25pm

“It is about time judges were held to account”

Brian: you can have an accountable judiciary or you can have an independent judiciary, but you can’t have both at the same time and in the same place. I know which I prefer.

Brian - April 7, 2017 at 5:17pm

Everyone is content for a judiciary to be independent to make errors (albeit not intentional errors) until you are the victim of those errors. Where errors are sufficiently gross enough to destroy someone’s life, the root originators of those errors should be held to account, we expect it in every part of society therefore no one should be beyond a basic principle. For it is where power is absolute – corruption is free to manifest and thrive.

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