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Successful Appeal for Father Stopping Mother’s Kenya Holiday with Daughter

Monday, 28 October 2013

A father has won an appeal against an order giving permission to his ex-wife to take their daughter to Kenya on a holiday.

The ruling indicates that courts will err on the side of caution where there is any risk of abduction.

Background to Re: R (A Child) 2013

The couple were born and married in East Africa and they moved to England after their daughter's birth in 2001. In 2009 the couple divorced and the father applied for a residence and a prohibited steps order aiming to prevent his ex spouse from removing their daughter from England. He was granted a contact order while the residence of the child was granted to the mother.

In 2010 the father made another application for a residence order and a prohibited steps order, according to which a parent should have the express agreement of the other parent or the court’s permission to take the child away from the jurisdiction. The mother, in turn, sought a Section 91 (14) Order under the Children Act 1989.

The mother subsequently made a number of applications regarding taking her child to Kenya for holidays; one of which was successful. The judge gave permission to her as he came to the conclusion that there was no danger of her not returning to England with the child. His decision was mostly based on the mother's statement that she enjoyed the benefits and life in London. However, he imposed certain conditions, specifically, the signing of a notarized agreement with the court and deposit of both passports at the High Commission in Nairobi.

Risk of Abduction to Non-convention Country

The father successfully appealed the order on the grounds that there was always a risk of abduction and the non-return of the child to England would be detrimental to the child. Furthermore, there were no guarantees that he could initiate proceedings in the courts of Kenya, since it is not a party to the 1980 Hague Convention. Therefore, there were no safeguards for securing his daughter's return from Kenya.

In addition, it was argued that the lower judge's decision to allow the mother to take the daughter to Kenya on the basis of the conditions he put in place relied on insufficient evidence solely provided by the mother and was made without proper investigation or expert evidence confirming that they would be effective.

Basis of the Court of Appeal Decision

The court held that three elements must be considered for an order to be made allowing the temporary removal of a child to a non convention country: a) the magnitude of the risk of breach of the order if permission is given; b) the magnitude of the consequence of breach if it occurs; and c) the level of security that may be achieved by building in to the arrangements all of the available safeguards.

The Court of Appeal annulled the order of the lower court on the basis that this analysis into the risks and proposed safeguards was not properly conducted. In making its decision it confirmed that the overriding consideration for the court was the best interests of the child.

If you are affected by any of the issues raised in this case please a member of the Family Law Department by telephone on 0207 611 4848.

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