R (A Child)

Factual and Procedural Background

The appeal concerns a decision by HHJ Oliver to discharge a prohibited steps order (PSO) previously made by a District Judge in Children Act proceedings regarding a 10-year-old girl ("the child"). The mother was granted permission to take the child to Kenya for a holiday, which the father opposed due to concerns about a real risk of abduction and retention in Kenya, a non-signatory to the 1980 Hague Convention. The father appealed on grounds that the judge failed to properly assess the risk and conduct the balancing exercise required by precedent, and that the safeguards imposed were ineffective. The parents married in Kenya in 2001, divorced in 2009, and have been involved in ongoing residence and contact proceedings since then. Previous orders had granted residence to the mother with contact for the father, and various applications for travel permission were adjourned or determined over several years. Expert evidence from a Kenyan solicitor was provided on the enforceability of custody orders in Kenya, but was limited and incomplete. Ultimately, HHJ Oliver granted permission for the child to travel subject to safeguards including a notarised agreement and lodging of passports with British High Commissions, but the mother failed to secure all required confirmations. The judge then reconsidered the position and granted permission relying primarily on the notarised agreement as the remaining safeguard.

Legal Issues Presented

1. Whether HHJ Oliver was correct to discharge the prohibited steps order and grant permission for the child to travel to Kenya.
2. Whether the judge properly carried out the risk assessment and balancing exercise required by the Court in Re K (Removal from Jurisdiction: Practice) [1999] 2 FLR 1084.
3. Whether the safeguards imposed, particularly the notarised agreement, were effective and supported by adequate expert evidence.
4. The appropriateness of relying on the mother's undertakings and the adequacy of expert evidence regarding enforceability of safeguards in a non-Hague Convention country.

Arguments of the Parties

Appellant's Arguments (Father)

• The judge failed to properly assess the risk of abduction and did not adequately balance that risk against the safeguards available.
• Reliance on the mother's undertakings without sufficient oral evidence or assessment of credibility was inadequate.
• The notarised agreement was not supported by expert evidence as to its recognition or enforceability in Kenya and should not have been treated as an effective safeguard.
• According to Re K, all practicable safeguards should be in place, and expert evidence on foreign legal systems is typically necessary.
• The judge’s order was either unconditional or based on an illusory safeguard, both of which are legally flawed.
• Suggested that courts should adopt a structured approach, refusing permission unless legally enforceable safeguards are demonstrated by clear expert evidence.

Respondent's Arguments (Mother)

• The judge was justified in concluding that the notarised agreement was of no practical effect in Kenya due to lack of expert evidence, and thus the mother’s intention to return was sufficient.
• The judge’s assessment that the mother was a British citizen content to live in the UK justified granting permission.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the case by applying established principles from Re K and Re M. It emphasized that the key elements in cases involving removal of a child to a non-Hague Convention country are: (a) the magnitude of the risk of breach of the order, (b) the magnitude of the consequences if breach occurs, and (c) the level of security achievable through safeguards.

The court found that although HHJ Oliver correctly identified the grave consequences for the child if she were retained abroad, he failed to properly integrate this factor into his later reasoning when granting permission. The judge relied on the mother's evidence and the notarised agreement as a safeguard, despite the absence of expert evidence establishing the agreement's enforceability or practical effect in Kenya. The court held that this was a fundamental deficiency, consistent with the guidance in Re K and Re M, where expert evidence on foreign legal systems is usually necessary to support such safeguards.

The judge's reliance solely on the mother's intentions and the notarised agreement without clear reasons or evidence was inadequate, particularly given the serious risks and consequences involved. The court stressed that where expert evidence is lacking, courts should err on the side of caution and refuse permission unless there are clear justifications for proceeding otherwise.

Additionally, the court noted practical difficulties arising from changes to legal aid funding, which may impede access to necessary expert evidence in future cases, and reiterated the importance of allocating such cases to judges with appropriate expertise.

Holding and Implications

The appeal is allowed. The court set aside the order permitting the mother to remove the child temporarily to Kenya and reinstated the previous prohibited steps order preventing either parent from removing the child from England and Wales without the other's consent or court permission. The father's existing permission to take the child on holiday to Spain remains unaffected.

The decision directly affects the parties by preventing the child's removal to Kenya absent sufficient safeguards. No new precedent was established beyond reaffirming the application of existing principles from Re K and Re M. The court also highlighted procedural and practical challenges related to expert evidence and case allocation in such sensitive matters.