Enhancing Child Protection: Consent Orders as Safeguards in Non-Hague Jurisdictions – Commentary on M (Children) (Non-Hague Convention State) ([2020] EWCA Civ 277)

Introduction

The case of M (Children) (Non-Hague Convention State) ([2020] EWCA Civ 277) adjudicated by the England and Wales Court of Appeal (Civil Division) on February 28, 2020, presents a significant legal examination of child welfare decisions involving international jurisdictions outside the binding frameworks of the 1980 Hague Child Abduction Convention and the 1996 Hague Child Protection Convention. The dispute centered around parents of different nationalities—Qatari and Emirati—seeking permission to temporarily relocate their children for holidays to their respective home countries, Qatar and Dubai, while contending with the risks of child abduction and non-return.

The key issues revolved around assessing the risk of abduction, the potential consequences for the children's welfare if such risks materialized, the benefits of international travel for the children, and the effectiveness of proposed legal safeguards in the absence of reciprocally binding international agreements.

Summary of the Judgment

The Court of Appeal upheld the initial order made by Deputy High Court Judge Levey, which granted both parents permission to take the children to Qatar and Dubai, respectively, under stringent conditions. Central to the judgment was the reliance on consent orders to provide safeguards against the potential abduction or retention of the children in non-Hague Convention states. The court meticulously evaluated the risk assessments provided by expert Mr. Edge and considered the parents' commitments to the UK, the history of their cooperation, and the influence of their respective families.

Ultimately, the court concluded that, despite acknowledging some uncertainty regarding the enforceability of consent orders in Qatar and Dubai, the proposed legal measures constituted the best possible safeguards available under the circumstances. Therefore, the appeal was dismissed, affirming the lower court's decision to permit the international travel of the children with appropriate legal protections in place.

Analysis

Precedents Cited

The judgment heavily referenced prior case law to frame the legal context and guide the court's decision-making process:

Re T (Staying Contact in Non-Convention Country) [1999] 1 FLR 262 and Re A (Security for Return to Jurisdiction) (Note) [1999] 2 FLR 1 – These cases established the precedent for utilizing local court orders to enforce child custody agreements in non-Hague jurisdictions, emphasizing the need for enforceable agreements to mitigate abduction risks.
Re K (Removal from Jurisdiction: Practice) [1999] 2 FLR 1084 – Highlighted the necessity for thorough preparation and credible evidence when evaluating child removal applications to non-Conventions countries.
Re A (Prohibited Steps Order) [2014] 1 FLR 643 – Provided a framework for assessing whether temporary removal orders align with the child's best interests, particularly focusing on risk evaluation and necessary safeguards.
In re J (A Child) (Custody Rights: Jurisdiction) [2006] 1 AC 80 – Addressed appellate court limitations in interfering with trial judges' credibility assessments and risk evaluations.
Re F (Children) [2016] 3 FCR 255 – Affirmed that trial judges need not provide exhaustive legal analyses but must ensure transparency in their reasoning to facilitate appellate review.

These precedents collectively underscore the judiciary's cautious approach towards cross-border child welfare decisions, especially in the absence of international conventions, by emphasizing the protection of the child's best interests and the implementation of robust safeguards.

Legal Reasoning

The court's legal reasoning hinged on the principles established by the Children Act 1989, particularly the paramount importance of the child's welfare in decision-making (s.1). The court meticulously applied the tripartite risk assessment framework from Re A, evaluating:

The magnitude of the risk of the children not being returned.
The potential consequences if such a breach occurred.
The efficacy of available safeguards to mitigate these risks.

In the absence of the Hague Conventions, the court relied on consent orders as pragmatic legal instruments to enforce parental agreements in Qatar and Dubai. Expert testimony from Mr. Edge was pivotal, informing the court about the local legal mechanisms available in these jurisdictions to enforce such agreements. Despite uncertainties regarding the absolute enforceability of these orders, the court deemed them sufficiently robust given the parents' cooperation and the established safeguards.

The judge also considered the psychological and emotional well-being of the children, ensuring that international travel did not infringe upon their best interests. Balancing these factors, the court concluded that the proposed arrangements offered a reasonable balance between facilitating familial bonds and safeguarding the children's return to England.

Impact

This judgment has significant implications for future cases involving child welfare decisions across non-Hague jurisdictions:

Legal Precedent: It reaffirms the viability of consent orders as effective safeguards in the absence of international conventions, providing a framework for courts to follow in similar cross-border child custody disputes.
Judicial Approach: Emphasizes the necessity for thorough risk assessments and the implementation of bespoke legal safeguards tailored to the specifics of each case, especially when dealing with countries lacking reciprocal legal agreements.
Parental Cooperation: Encourages cooperative parental relationships and highlights the judiciary's preference for negotiated settlements supported by enforceable legal mechanisms.
International Legal Collaboration: Underscores the importance of understanding and navigating the legal landscapes of foreign jurisdictions to protect children's welfare effectively.

Furthermore, this case serves as a reference point for cases involving non-conventional legal arrangements, guiding practitioners in crafting consent orders that address the inherent risks of international child relocation.

Complex Concepts Simplified

Consent Orders

Consent orders are legally binding agreements sanctioned by the court, which stipulate the rights and responsibilities of each parent regarding their children. In this context, they serve as safeguards ensuring that both parents adhere to the agreed terms, such as returning the children after their international visits.

Prohibited Steps Order

A Prohibited Steps Order is a court order that prevents a parent from making significant decisions regarding the child's upbringing or from removing the child from the jurisdiction without the consent of the other parent or the court. This order is pivotal in preventing unilateral actions that could jeopardize the child's welfare.

Guardianship vs. Custody

In UAE law, guardianship (wilaya) pertains to overarching authority over a child's upbringing, including religious and educational matters, whereas custody (hadana) refers to day-to-day care. Post-divorce, the father typically retains guardianship, while the mother is granted custody, influencing decisions regarding the child's movement between jurisdictions.

Hague Conventions

The 1980 Hague Child Abduction Convention and the 1996 Hague Child Protection Convention are international treaties designed to protect children from international abduction and ensure their prompt return. Countries that are signatories are bound by these agreements, facilitating legal processes across borders. The absence of these conventions' applicability in this case heightened the complexity of ensuring the children's return to England.

Conclusion

The judgment in M (Children) (Non-Hague Convention State) underscores the judiciary's commitment to safeguarding children's welfare even in the absence of international legal frameworks. By endorsing consent orders as viable safeguards, the court balanced the benefits of cross-border familial interactions with the imperative to mitigate abduction risks. This case establishes a nuanced precedent for handling similar disputes, emphasizing the necessity of tailored legal mechanisms and thorough risk assessments. It reinforces the principle that the child's best interests remain paramount, guiding future judicial decisions in complex international custody matters.