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B v C (temporary leave to remove to non-Hague Convention country) [2017] EWFC B97

In brief: Dealing with cross-applications (the mother’s (“M”) to be allowed to take the child on holiday to Hague and non-Hague countries and the father’s (“F”) for a shared care arrangement), the court ordered a shared care arrangement (although this was not 50:50) reflecting a refinement on the current arrangements and allowed M to take the child on holiday subject to appropriate safeguards which applied to both parents.

  • IMPORTANT NOTICE This judgment was delivered in private. The judge has given leave for this redacted version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child and members of his family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.



    Date: 12th December 2017


    Her Honour Judge Vincent

    Between :

    B (Applicant mother)


    C (Respondent father)

    Hearing dates: 27th June, and 20th, 21st and 22nd November 2017


    Introduction and background

    1. I am concerned with A, who is nine. He is a happy, intelligent boy, who enjoys school and is popular with his classmates. He is dearly loved by both his parents, and enjoys spending time with each of them. A's mother was born and raised in Country X, but is now based in [England], and since July 2006 has been a British national. A's father is a British national. He is an anthropologist who has spent a great deal of his career in Africa. He was living in Country X between 1991 and 1997. A's parents met in Country X in the late 1990s, and were married there in August 2002. They moved to England in September 2002. A was born in February 2008. A was recently diagnosed with growth hormone and cortisol deficiency, for which he is given hydrocortisol three times a day and an injection of a growth hormone once a day.

    2. The mother says the marriage was in serious difficulty by the summer of 2010 and she petitioned for divorce in October of that year. It is to the credit of each of A's parents that they have to a large extent shielded their son from their disputes, but they have nonetheless been locked in profound conflict with one another for all the years since their separation.

    3. On 17th August 2011 District Judge Jenkins made an order with a recital that the parties would use their best endeavours to resolve future differences through mediation, and that they would apply to court only as a last resort. The order provided that the mother would make A available for staying contact with his father every Tuesday for an overnight stay, and from Friday to Sunday every other weekend. A was to see his father for one week during each of the main school holidays, and there was to be further or additional contact as the parties might agree.

    4. The parties returned to Court following father's application to vary made in January 2012. On 1st June 2012 Deputy District Judge Edwards confirmed that District Judge Jenkins' order remained in force. Annexed to her order is a written agreement designed to assist both parties in implementation of District Judge Jenkins' contact order. It was clear that as part of that agreement it was envisaged that both parents would travel abroad with A on holidays and that the mother would take him to Country X, for extended stays.

    5. At paragraph 2 of the agreement, it is recorded that 'both parties accept that if they are enjoying holiday contact with A, the usual contact ordered by District Judge Jenkins is suspended. The mother may suspend contact for no more than 4 weeks e.g. 4 Tuesdays and 2 alternate weekends.' At paragraph 6, it is noted that the mother would notify the father about holidays no later than a month in advance, 'although if it is anticipated that if a lengthy holiday is planned to Country X (for example) the mother will be able to provide a longer period of notice.' The father asserted at the final hearing that paragraph one should be interpreted as an agreement that in one calendar year A would not spend more than 28 nights altogether on holiday with his mother. This interpretation is to my mind inconsistent with the arrangements that had in been in place at the time the agreement was entered into and for the couple of years following, when the mother had taken extended trips to Country X with A.

    6. A first travelled to Country X in 2008 when he was eight months old and returned, initially with both his parents in 2009, and then with his mother only, in 2010, 2011 and 2012. In 2013 he travelled with his mother to Country X twice, for periods of three weeks and then five weeks respectively.

    7. In November 2013 the mother sent an email to the father raising the idea that she might relocate permanently with A to Country X. On 14th February 2014 the father applied for an order that A should move to live with him, and for a prohibited steps order to prevent the mother moving with A to Country X.

    8. On 9th April 2014 District Judge Jenkins made a prohibited steps order providing that neither parent was to remove A from the jurisdiction without the agreement of the other, or further order of the Court.

    9. Later in 2014 the mother did then apply to the Court for permission to remove A permanently from the jurisdiction, but if permission were not given, she said she wished to stay in England with A. The father cross-applied for A to move to live primarily with him. The court file for this application is missing but I have seen the orders that were made. A section 7 report was obtained and the author did not recommend that permission should be given for the mother to move to Country X with A.

    10. On 8th January 2015 at a dispute resolution hearing in respect of the application, the mother sought to withdraw her application. His Honour Judge Tolson QC gave permission to the mother to do so. It was recorded that the mother would be away working in Country X for six weeks and that A would live with his father during that time. HHJ Tolson QC gave the father permission to take A on holiday to Egypt in April of that year, to Spain in August 2015, and for the mother to travel to Country X with A for ten days at Christmas 2015, provided she had obtained an order from Country X's family court reflecting the terms of his order, in particular that A should live in England and Wales and be returned to the jurisdiction from Country X at the conclusion of the holiday. Permission had been given in November 2014 by HHJ Hughes to the parties to obtain expert evidence from an international family lawyer as to the enforceability in Country X of a child arrangements order made in the Family Court in this jurisdiction, but I am not clear whether or not a report had in fact been filed at this stage; I think not.

    11. The mother did in the event obtain an order from the High Court in Country X, but not until December 2015, by which time it was too late to book the proposed Christmas holiday.

    12. Since the prohibited steps order of April 2014, A has travelled abroad with his father on a number of holidays, most frequently to Tenerife, but also to Barcelona and Andalucia, and to Egypt. Since that time, A has not been abroad with his mother.

    13. On 19th May 2016 the mother applied to the Court to enforce the order of HHJ Tolson QC permitting her to leave the jurisdiction and to travel abroad for holidays to both Hague and non-Hague convention countries, including Country X, with A.

    14. The case was initially allocated to HHJ Oliver, sitting as a section 9 judge. Unfortunately the Court file is incomplete but I have done my best to piece together events. The parties saw HHJ Oliver on 7th July 2016, and he gave permission to the parties jointly to instruct an expert in Country X law. There seems then to have been a hearing on 30th August 2016, but there is no order on the Court file. A planned hearing for 10th October was adjourned to 7th November, but again there is no order on the Court file from that date. From the correspondence file and a draft order submitted, about which there was a dispute, it seems that permission was given for the expert to be solely instructed by the mother.

    15. On 19th October 2016 the father applied to the Court for a child arrangements order that would provide that A would move to live primarily with him and spend time with his mother. His position at final hearing is that he would like the child arrangements order to reflect a shared care arrangement, with A spending broadly half his time with each parent. Between 2014 and 2016 A did in fact spend nearly half his time with each parent, his mother travelling abroad on a number of occasions for her work. She has set up her own business, registered in the UK, as a fashion designer and stylist. She has clients in the UK but also in Country X, Country Y, and the United States. In the past few years as well as travelling to these destinations, she has travelled to Shenzhen in China on buying trips.

    16. There was a further hearing before HHJ Oliver on 2nd December 2016, by which time the expert report of YY had been obtained. This was now on the sole instruction of the Applicant mother. The parties were given permission to put questions to the expert and a section 7 report was commissioned from Cafcass in respect of the father's application for change of residence and the mother's application for leave to remove the child from the jurisdiction for holidays. HHJ Oliver listed a final hearing for two days before me in early February 2017 but unfortunately there was another significant delay in drawing up the order, which was not received by Cafcass until 5th January 2017, leaving insufficient for its reporter to prepare a report in time for the final hearing.

    17. On receipt of a letter from Cafcass, and having consulted the parties, I adjourned the final hearing until May 2017, which was the next time I had availability for a two day hearing.

    18. I subsequently made a decision to adjourn the hearing for a further month and to list it before Mrs Justice Pauffley who was due to sit in Oxford in June 2017. I had been told that she had three days available to hear the case, and I considered that was a more realistic time estimate.

    19. Very unfortunately, this plan fell through. The parties attended for a day before Mrs Justice Pauffley on 27th June 2017, but the day was much interrupted by other hearings. The expert was standing by on video link from Country X, but in the event only the Cafcass officer's evidence was heard. Mrs Justice Pauffley directed that the hearing continue part-heard before me, giving a time estimate of three further days. She ordered a transcript of the Cafcass officer's evidence to be obtained and excused her attendance at the adjourned hearing. Regrettably, a further delay was then caused as the next time that I had three days in my list was in November 2017.

    Issues between the parties

    20. At one time or another each of the parties has been represented during these and previous proceedings, but at this final hearing, both parties represented themselves. They each acquitted themselves admirably. Both are highly intelligent. Their written and oral submissions were clear, and largely focused on relevant matters. They had both spent a great deal of time preparing their cross-examination of the expert and of each other, showed impressive familiarity with the contents of the two large bundles, and a good understanding of law and procedure. They put questions to one another politely, and gave fair opportunity for answers to be given.

    21. The two issues for the Court to resolve are as follows:

    (i) The mother's application for permission to take A on holidays including to non-Hague Convention countries including Country X;

    (ii) The father's application for a child arrangements order that divides A's time broadly equally between his parents.

    The law

    22. In reaching my decisions in respect of each issue, the welfare of A is paramount and his welfare has been at the forefront of my mind throughout this hearing. In my conclusions as to what, if any, orders would meet his welfare, I must have regard to all the circumstances, and in particular those set out in the welfare checklist at section 1(3) of the Children Act 1989.

    23. I also have full regard to the principal on proportionality. A court should not sanction or make any orders unless the court is satisfied that it is both necessary and proportionate and that no other less radical form of order will achieve the essential end of promoting A's welfare.

    24. With regard to the application for permission to take A out of the jurisdiction, I have had regard to a number of authorities, starting with Re K (removal from jurisdiction) [1999] 2 FLR 1084, which concerned an application for temporary removal of a child to Bangladesh.

    25. The approach the Court should take to applications to for leave to remove is described by Patten LJ in Re R (Prohibited steps order) [2013] EWCA Civ 1115. At paragraph 23 of the judgment he said:

    'The overriding consideration for the Court in deciding whether to allow a parent to take a child to a non-Hague convention country is whether the making of that order would be in the best interests of the child. Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the Court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail. This will therefore routinely involve the Court in investigating what safeguards can be put in place to minimise the risk of retention and to secure the child's return if that transpires. Those safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by the UK-based parent.'

    26. He continues:

    'Although, in common with Black LJ in Re M, we do not say that no application of this category can proceed in the absence of expert evidence, we consider that there is a need in most cases for the effectiveness of any suggested safeguard to be established by competent and complete expert evidence which deals specifically and in detail with that issue. If in doubt the Court should err on the side of caution and refuse to make the order. If the judge decides to proceed in the absence of expert evidence, then very clear reasons are required to justify such a course.'

    27. He then referred to the approach the Court should take when assessing the risk, first set out by Thorpe LJ in the case of Re K above:

    '.. Applications for temporary removal to a non-Convention country will inevitably involve consideration of three related elements:

    a) The magnitude of the risk of breach of the order if permission is given;

    b) The magnitude of the consequence of the 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.

    28. In Re R the judge had granted the mother permission to take her daughter to Kenya, on condition that she obtained a notarised agreement recording that the mother would return the child to England after the holiday. The Court of Appeal found he was wrong to do so, because he did not have any expert evidence that the notarised agreement he had identified as providing a safeguard to the father would actually do so. Further, it was found that the judge had not given any clear reasons to justify his reliance on the safeguard where there was no expert evidence that it would be effective.

    29. The father has referred me to both Re K and Re R, above. He also referred me to Re L (removal from jurisdiction: holiday) [2001] 1 FLR 241, in which a mother was given permission to take the parties' three year old son on holiday to the United Arab Emirates, on condition she deposited a £50,000 bond, give an undertaking that she would return the child to the jurisdiction by a certain date, enter into solemn declarations on the Koran guaranteeing safe return of the child, and provide the father with details of her journey including copies of the tickets. The father has also referred me to another Re R; Re R (temporary leave to remove from the jurisdiction) [2014] EWHC 643 (Fam) in which a mother was refused permission to take two of her four children on holiday to India, and to Re L and B (temporary leave to remove; circumcision) [2016] EWHC 849, where Roberts J concluded that none of the safeguards proposed by a father wishing to take his children to Algeria was likely to have any real or tangible effect, and he should not be given permission to take his children on holiday there.

    30. I have also read and considered two recent cases decided by Mr Justice Jackson (as he was); re W (temporary leave to remove) [2016] EWFC 45, and AB v TB (specific issue order) [2014] EWHC 4663, both cases where on the particular facts, fathers were allowed to take their children on holiday to non-Hague Convention countries. In AB v TB, the judge found some assurance in the safeguards offered, in Re W, he found the risk that the father would fail to return the child at the end of a trip to be non-existent. I have read the case of Re AB (temporary leave to remove) [2014] EWFC 2758 in which a mother was refused permission to take her six year old son on holiday to India.

    31. It is clear from all these authorities that the decision in each case turns on its particular facts, and in particular the Court's assessment of the potential risks and benefits to the child of the proposed holidays, and the intentions of the parent wishing to travel out of the jurisdiction. In AB v TB, the Court noted the comments of the experienced expert:

    'So having indicated that it is possible for the children's legal position in Jordan to be protected to a large but not complete extent, Mr Edge finally observed that in reality in these cases the main safeguard for the children is this court's assessment of the credibility of the applicant. That is a conclusion that he has reached having been involved in many such cases.'

    32. Nonetheless, these cases are helpful because they are all examples of judges exercising their discretion by coming to a view about whether the order requested would be in the best interests of the child, having regard to the factors on the section 1(3) welfare checklist, and adopting the three stage approach to risk set out above in Re R.

    33. In exercising its discretion the Court must proceed on the basis of facts which have been established to the standard of a balance of probability. Findings of fact must be based on evidence (including inferences that can be properly drawn from the evidence) and not on suspicion or speculation; Re A (a child)(fact finding: speculation) [2011] EWCA Civ 12.


    34. I have read and considered the contents of two full bundles; the main bundle prepared by the mother and a supplementary bundle provided by the father. I have also spent some time reviewing available Court files to obtain the chronology of applications and orders.

    35. I heard oral evidence from the expert YY by video link from Country X. Unfortunately there were significant difficulties in making the video link connection and once again YY spent the best part of a day waiting to give her evidence. She eventually did so on the first day of the hearing at about 2pm English time [redacted]. The father spent the whole of the second day cross-examining the mother. He gave his evidence on Wednesday morning and I heard submissions in the afternoon before reserving judgment.

    36. EB, Cafcass officer, has prepared a report dated 2nd March 2017, and I have the transcript of her evidence before Mrs Justice Pauffley on 27th June 2017, when she was cross-examined first by Ms Smith on behalf of the mother and then by the father in person.


    37. YY is a very experienced lawyer, having been in practice in Country X for twenty eight years. She operates mainly in the commercial sphere and it is not apparent from her CV that she has any significant experience of the family courts. The report itself is only two pages long and confirms that Country X is not a signatory to the Hague Convention on child abduction, therefore if the mother took A to Country X and did not return him, the father could not use the process available as between Hague Convention countries first to take steps to find him and then for his mother to be ordered to return him to the jurisdiction. YY confirms that the law in Country X does not allow registration of a child arrangement order made in England, as the [name of legislation redacted] Act specifically excludes proceedings in connection with children.

    38. Instead, YY suggested an alternative safeguard of obtaining a 'mirror' child arrangements order in Country X which would set out the dates that A was to spend time with his mother in Country X and make clear that at the end of each stay he should be returned to the jurisdiction of England and Wales. She said that if the mother then breached that order, the father could apply to the Country X's Courts for an order that the mother was in contempt of court, and that in this way, the Country X's Courts could direct as part of committal proceedings that A should be returned to the jurisdiction.

    39. YY does not describe in her report the process by which the Country X's courts might grant such a child arrangements order in the first place, the cost, the time frame for obtaining an order, nor the factors the judge would take into account when making it, save that she suggests it would be better for it to be a consent order filed by both parties. During her oral evidence she said that she did have personal experience of using this process to ensure the return of a child from Country X to the English jurisdiction, in about 2009. However, I remained very unclear about how it would work in practice, as she described the English order having been 'registered' ex parte in a Country X Court. This seemed to contradict her clear evidence to the Court in these proceedings was that registration of foreign judgments relating to children is excluded by statute. She was asked what agency would be responsible for physically finding A and his mother in the event that he was unlawfully retained in Country X, and who would ensure that they were taken to an airport and returned to England. She was clear that it would not be the police, nor the Court bailiff, and suggested that it would be for the British High Commission to do this, and that the mirror order could provide that the British High Commission should assist in returning the child to the UK.

    40. I do not have confidence that the process described by YY would provide the father with the ability to recover A from Country X should his mother fail to bring him back to England after a holiday. As both parties are representing themselves in these proceedings, it would effectively fall upon me to draft the terms of the order that should be obtained in Country X, and I have been given no precedent, no checklist of provisions that must go in the order, no set of principles to apply to ensure that it would be effective. YY gave a rough indication of the hourly cost of obtaining legal services in Country X, but was vague as to the costs of enforcement. I do not have before me the evidence that would enable me to determine how much money the mother should deposit as a bond for the father to use as a fighting fund in the event that she went to Country X with A and did not return. In any event, this is not something that the mother is offering in this case.

    The mother

    41. The mother has prepared two statements, in July 2016 and in December 2016. Having been thoroughly tested by extensive cross-examination, her oral evidence was consistent with the evidence in her statements, and with evidence from contemporaneous documents; for example she had a good recollection of consultations with doctors, and her recollections accorded with the medical records. I found her to be a reliable witness.

    42. The father repeatedly accused the mother of excessively controlling behaviour and of having an agenda of wanting the father to be out of his son's life. He often suggested to her that a disagreement they might have had, or an action she had taken was part of 'your fight', 'your battle', or 'your war'. He talked about 'the war being fought', or 'the battle for control of contact'.

    43. There was in my judgment no evidence to support the father's case that the mother has been waging any kind of war with him, or that she has an agenda to reduce his father's influence in A's life. My finding based on all the evidence I have heard is that the mother has never sought to reduce the time that her son spends with his father. I find that she has complied with Court orders; I was not taken to any example of a time when she was said to have breached one. I find that she has acquiesced to requests for A to spend additional time with his father; for example to see rugby or cricket matches or to go on holidays with him. In cross-examination the father suggested to her that she had been unreasonable in not agreeing to A going to Lords with him to watch particular special matches with him, but he accepted these events were on days when A would normally be spending time with his mother. He considered it was unreasonable for the mother to have requested that if A were watching cricket with his father at Lords on a Sunday that he should have to leave the match before its conclusion in order to return A to his mother by 7.30 p.m. as he had school the next day. I do not regard this behaviour by the mother as unreasonable, but a child-focused and sensible request.

    44. Rather than the mother being controlling, in my judgment it is the father who has demanded flexibility from the mother so far as his requests are concerned, but has been utterly rigid in his approach to any request from her to change arrangements. He appears to have created in his mind a very inflexible set of rules, for example he now interprets Deputy District Judge Edwards' record of the parties' agreement that the mother should suspend contact for no more than twenty eight days as a rule that A may spend no more than twenty eight days cumulatively each year on holiday with A. There is no sense in such a rule and it is contrary to the spirit of the agreement, and what was actually happening at the time the agreement was made, which was for A to spend extended periods of time away with his mother on holiday. He has created a fixed rule out of a generally expressed expectation that if the mother is away then she should approach the father first in order to ask him if he would like to care for A, before making her own arrangements. There is evidence of the father contacting friends to track down A in such circumstances and going so far as to demand A is taken away from a friend he is staying with and to go and stay with the father instead.

    45. I found that the mother's approach to child arrangements was child-centred, and despite her differences with A's father, she encourages and supports the relationship between him and A. I have not found any example of her refusing contact, using A as a bargaining chip, or otherwise wielding any sort of power over the father, or acting in a controlling way over contact. I find this to be in stark contrast to the father's approach. On a number of occasions the father talked about wanting a shared care child arrangements order so as to give him 'parity' in negotiating, and in order to shift power away from mother and more towards him. He said he wanted a 'balance of power'.

    46. In April 2017 there was a significant dispute between the parties about holiday contact. I was told that the parties had agreed Easter holiday contact at a hearing in November. Unfortunately there is no written record of what was agreed. The mother says that although she did agree to the father taking A on a holiday to Tenerife, it was also agreed that A would spend a week with her. She says the father went ahead and booked a holiday on dates that overlapped with the weekend she had planned to spend with A, thus ruining her plans including a celebration with friends that she had arranged. Things came to a head on the day A and his father were due to leave for Tenerife. A did not go to school that day, his mother had taken him to the general practitioner. Upon discovering this he went to the surgery where he insisted upon attending the appointment with the doctor. Outside the surgery there was then a very unedifying meeting attended by a member of [the] police, who had been called by the father. I have been asked to watch the DVD of this exchange and regard it as most unfortunate. The mother was put under significant pressure by the police officer, was accused by him of blackmail, and although she repeatedly asked for the opportunity to explain the situation more fully, she was repeatedly interrupted by him, he talked over her, and had a very fixed view of the situation, namely that the father had booked and paid for flights and she should not stop her child from going on the holiday. It was most regrettable that A was standing next to his mother the whole time, and while she asked if she could put him in the car this was refused. She put headphones on him to try and block out some of what was happening. The father took no steps at all to protect him. It is of great regret that A was exposed to this dispute and that he had to see his mother being accused in this way. A did go on holiday with his father that day.

    47. The father suggested the mother had an agenda to prevent A from getting the medical attention and treatment that he needed, and he suggested that she had deliberately sought to influence or to direct A's consultant not to pursue investigations into his short stature in 2011. He alleged that she had furiously objected, and that she had given false information to A's treating clinicians about the heights of the parents which meant no referral was made to the endocrinologists. This is not borne out by the medical evidence. There is no reason the mother would wish to halt such investigations. Her reports to doctors that A was happy and well were consistent with the reports of his teachers at school and the observations of both social work and medical professionals.

    48. He suggested that the mother had deliberately and with malign intent attended a cancelled appointment with A's consultant in May 2017, in order to try to halt further investigations. He did not accept her evidence that she had not got his email informing her of the same sent at midnight the previous day. He suggested that the mother had been negligent in refusing to allow A to have a typhoid or yellow fever injections in December 2013. The mother's evidence, which I accept, was that the nurse had run through the list of potential vaccinations, those which were required, those which were optional, their effectiveness and whether they would be painful or have side effects. She said there was no typhoid or yellow fever in the area they were going and thus she made an informed decision not to cause A distress and pain for little relative benefit. The father did not accept this. I have found no evidence of the mother taking any action that might have compromised her son's health. In my judgment the evidence shows her to have acted appropriately and in accordance with medical advice.

    49. The mother exhibited to her statement notes from a local authority core assessment in June 2011. A had been referred a couple of months earlier for failure to thrive. It was recorded that there were substantial areas of disagreement between the parents about the state of A's health which made assessment difficult. The father was noted to have sought a private audience with the paediatrician and had suggested that the mother might be administering medication to make him sleep. The father was concerned that A had tuberculosis. The father had concerns about A's speech and language development. Both parents were critical of the care given by the other to their son. The local authority concluded that A was doing very well, that he was eating well, was a healthy and bubbly child, that his speech was excellent in both English and [language of Country X]. Social workers had concluded that he was settled and comfortable in his mother's care, and that he had probably had a chest infection when first referred, which made him not himself. There was no suggestion that A had been neglected by either parent. While these notes are from over six years ago, more recent interactions between the parents and medical practitioners show a similar pattern; the father very mistrustful of what the mother is reporting to doctors and taking matters into his own hands, for example going to see a general practitioner in respect of getting a referral for A without informing the mother. The general practitioner gained the impression that the father was a single parent.


    50. The father has also prepared two statements in these proceedings, also made in July and December 2016. I have read a lengthy statement of his from October 2014. His oral evidence was also consistent with what he says in his written evidence. While I did not find him to be an unreliable or untruthful witness, his perspective on many matters was not in my judgment consistent with the weight of the objective evidence, and I found him to be inflexible in his views and reluctant to entertain perspectives other than his own. He is very learned and expresses himself with clarity and precision, with a formidable range of vocabulary at his disposal.

    51. The father put to the mother in cross-examination that if there were to be a routine of more equal shared care, 'we are both free to vary it according to our needs without a risk of A not seeing me for a day; I could give you time knowing it would not be long before he is back, and we could exchange time.' (My note of the father's question may not give absolute justice to his general clarity of expression). The father accepted that he had not been prepared to consent to the mother going away with A for more than a week throughout 2016 and 2017, nor for A to spend any time with his mother at a time that clashed with 'his time' with A this year. His justification for this was essentially that he does not hold the balance of power in the arrangements between them. He suggests that if the starting point was a fifty-fifty split, he would be more inclined to agree that A spent time with his mother because it would mean that A would not miss out on time with him.

    52. In my judgment this approach focuses on the father's rights and entitlements before A's interests. Of course it is in A's interests to spend quality time with his father, and for his relationship with him to be nurtured and sustained. However, the father's decision never to consent to a variation of arrangements requested by the mother suggests that he has been unable to consider from A's perspective whether the proposed activity might be of benefit. Such a stance betrays a view that there can be no activity or event that A could do with his mother that would justify rearranging existing plans for A to spend time with his father. There are numerous examples of the father prioritising his own rights or entitlement to see A without considering A's interests. For example the mother recently requested his agreement to some holiday dates and he wrote back with a flat refusal because in his view she had overstepped what he regarded as her limit of 28 nights' holiday with A in a single year.

    53. The father is repeatedly negative about the mother and her abilities as a parent which again suggests he views A's time with his mother as of significantly less value to A than time with him. This is evident in the early social work assessment, in his witness statement and in his oral evidence. For example, in his witness statement he suggested that when A had spent time in Country X last it had been a 'dismal holiday for him' and all he wanted to do on his return was to find out when he was going to Tenerife with his father. He suggests that the mother frequently leaves A with other carers, and deplores her for it. He said that in 2013 two trips to Country X were too much for A, that A was 'clearly unsettled by too much quantity of Country X and a lack of quantity of his mother being with him.'

    54. So far as the mother's application to travel abroad with A was concerned, the father told me at the outset of his evidence that the reason he did not wish the mother to travel abroad with A was that she had a sustained design to exclude A from staying with him unless it suited her own purposes. He said that until she had demonstrated that she no longer wished to control the nights that A spent with him, and that she no longer wished to exclude him, then he would continue to worry about the risk of non-return. He said that if the mother were content for A to be schooled and brought up in England, then he said there would be no need for the continued prohibited steps order. The father's position seemed to me to reflect his sense of a need for a balance of power, and there being a need for concession on one side to obtain permission from the other; if she gave up her 'sustained design to exclude A from staying with him', he would be content for her to travel abroad. If he was satisfied that she no longer wished to control the nights that A spent with him, he would be content for her to go.

    55. The father certainly has said in statements and in oral evidence that he remains suspicious and concerned that permanent relocation remains a plan of the mother's, but the overriding impression I got, and the finding I make on a balance of probability and having regard to all the evidence, is that he is not genuinely fearful that she would seek to abduct A out of this jurisdiction. My reasons are as follows.

    56. In his July 2016 witness statement he said that 'until such time as I can be confident that that the Country X Court would rapidly enforce an order made in the English Court, then I will always object to the Applicant being allowed to remove A from the jurisdiction of this Court. Even if an advice is received from an expert in this field, I would still feel uneasy giving my consent to allowing A to be removed from the jurisdiction because I foresee numerous difficulties and obstacles in ensuring that he is returned to England'.

    57. The father's position is that he would 'feel uneasy' about giving his consent.

    58. In December 2015 after it became clear that a trip to Country X was not an option because the mirror order had come too late, the mother proposed taking A for a holiday to Iceland; she says A wanted to travel to see the Northern Lights. The father did not consent. He wrote to her, 'the hairdresser was just back from Iceland (which would still be removal from the jurisdiction) and said everything there is ridiculously expensive. 28.12.15 is a Monday and you are obliged to return him on 27.12.15, when he would most certainly like to attend both church and rugby, the only such events for him over the Christmas period.' In this email the father is prioritising his time with A over a potentially fun experience with the mother, applying an inflexible rule to dates, and finding something negative to say about the mother's choice of Iceland for a holiday destination, 'ridiculously expensive.' He does state that the trip would be removal from the jurisdiction but he does not express a particular concern about the prospect of non-return.

    59. In cross-examination the mother put to the father that he had never had any welfare concerns about her previous visits to Country X. He said that in 2013 when she went twice to Country X it was 'very nervous for me on all fronts', particularly as he knew the mother was looking for work in Country X at the time. He said 'I didn't like the risks being increased for any holiday above three weeks, I didn't like him being taken for more than six weeks in 2010, it was not easy on my mind.'

    60. The father has exceptional clarity of expression. While I accept that 'very nervous on all fronts' can be indicative of real disquiet and anxiety, the father's choice of language in oral evidence, of being nervous, of feeling uneasy, it being not easy on his mind, is consistent with what he says in his witness statements, and combines to create an overall impression that the father is not genuinely fearful that the mother would abduct A.

    61. The father has raised other objections so far as travelling to Country X is concerned. He is concerned about the mother's ability to manage A's health needs, particularly given his recent diagnosis. He says that Country X is not a safe country to visit. And he says that if the mother should choose to abduct A and not return him to this jurisdiction, that he would be unable to secure his return.

    62. The father's concerns about A's health and the mother's abilities to meet his needs were in my judgment expressed in a much more florid manner, there was a level of judgment and hysteria about his descriptions of Country X's medical treatment and he gave way to flights of the imagination that were indicative of the genuine and visceral fear of a father for his son, but in my judgment were not justified on the basis of the evidence I heard. For example, he complained that the hospitals in Country X did not have helipads, he suggested that if A became unwell so that he needed an emergency injection of hydrocortisol, it might be difficult to obtain it and there might be no one there to administer it if the mother was not with A. He worried about A and his mother being caught up in the traffic in Country X's capital city in the event of a medical emergency. He suggested that in Country X 'the prospect of individual gain can thwart basic assumptions when it comes to the use of medical supplies', and 'most nationals of Country X have unscientific ideas when it comes to injections'. Both these statements unsurprisingly offended the mother and were unfounded and wholly unjustified.

    63. The father's suggestion that A's current health needs mean that he could not travel abroad with his mother are not justified. A letter dated 24th June 2017 written to A's parents by Dr K, paediatric endocrine registrar at [treating hospital] confirmed that A had been diagnosed with growth hormone and cortisol deficiency, that he was currently on hydrocortisone replacement for his cortisol deficiency, but that 'he is otherwise healthy and a well boy who can travel just as long as he takes his medication in a timely manner.' His mother is well aware of the treatment he needs and how to obtain it in Country X or wherever she was.

    64. Similarly, the father's concerns about the lack of safety generally in Country X and his worries about terrorism do not amount to a good reason for A not to travel there with his mother. The father noted that within the last few weeks police in Country X had shot dead fifteen opposition supporters, that eight bus passengers had also been shot, three universities had been closed, and that British citizens had been shot in [a region of Country X]. The mother said that she did not travel on buses, and that she would never travel to risky areas with A. Of course the father is right when he says that A would be safer if he stayed at home with his mother or with his father in [England]. However, I note what Jackson J (as he was) said in Re W about the risk of terrorism:

    'Of course the risk that any person, child or adult, might be caught up in terrorism is almost a worldwide phenomenon these days. The fact that very, very few people in fact suffer physical harm from terrorism does not diminish its power to upset and disturb. …

    I am not in these cases especially influenced by the Foreign Office guidance which must apply to people regardless of their backgrounds. To say to somebody that they should not take their children on holiday to a country that is experiencing unrest might be a very strong argument if they were going there purely for pleasure, but it has to be looked at in context if you are in fact addressing a family who originate there and who may have entirely different needs.'

    65. The Cafcass officer gave evidence in June that A identifies himself as both British and a national of Country X and that half his identity came from his maternal family in Country X. She was cross-examined by the father as to what she meant by 'identity', and how one could quantify 'half an identity'. He asked the Cafcass officer 'how is integration ever going to be achieved in this country if a child should have at least half his immigrant parents' identity?' The judge did not require her to answer this. EB repeated that A was a child who identified with both British and Country X's culture.

    66. At the hearing before me when giving evidence the father said that as an academic he discouraged others from using the term 'identity' and focused more on culture as being formative. He said he did not think these things bothered A, he said he was a child who was very accepting of the way things are. He said A is happy to be an English European, to watch England play rugby and cricket. He said 'he can live happily as an English boy, that's how he has been brought up, living normally. … By culture he is English ... if he remains that way that will become indelible.'

    67. When asked whether A should not get to experience his Country X culture as well as English cultural life, he said, 'I don't feel he experiences much of a loss … he is an exceptionally popular boy, everyone thinks well of him, despite his physical ailments. He's doing very well and I don't think there is a need to create something nebulous called identity.'

    68. C is an anthropologist of very significant experience and no doubt there is academic support for his views about identity as a nebulous concept. However, my concern must not be a general theory but the particular needs of this particular child. I am concerned that A's father appears to view being an English boy as 'living normally', it implies that he regards the Country X part of A's identity as essentially something 'other', something that is not 'normal', and expresses the view that it is something that could be not just suppressed but ultimately could be extinguished. This is a child whose mother is Country X born, who had visited Country X every year since his birth until late 2013, who knows and has beloved family members there, and who speaks [language of country X] and a bit of his mother's first language [Y].

    69. The father said that he had no objection in principle to A spending time with family members from Country X or for that matter holidays. He did at first accept that A might be disappointed not to see his Country X relatives but then immediately qualified that by saying that when A returned from Country X both times in 2013 he was distinctly unsettled, that he had obviously been seen as 'exotic' because of his different skin tone, that he had been encouraged to be 'hyper'.

    70. In my judgment, the father's attitude to A's Country X heritage is consistent with his general view that his time with his mother is not of any particular value, or of less value than his time in England with his paternal family.


    71. I did not have the advantage of seeing EB give her evidence, but have read her report and the transcript of her evidence before Mrs Justice Pauffley, which was in line with the views expressed in her report. Her report was based on a thorough assessment of the evidence and a meeting with A. She is trained to meet children and to assess their wishes and feelings and then convey them to the Court. Her accounts of A are consistent with descriptions of him from others including his parents, and teachers, and I am satisfied that her assessment is reliable. I reject the father's suggestion that A simply parroted to the Cafcass officer what he had been told to say by his mother.

    72. So far as the application for child arrangements is concerned, EB recommends no change to the existing child arrangements order i.e. that A should continue to live for the majority of his time with his mother and to spend time with his father.

    73. So far as the application for permission to remove from the jurisdiction EB helpfully looks at the relevant factors including A's wishes and feelings, and the potential benefits and disadvantages of holidays, but rightly leaves that question for the Court.

    74. EB's report is based on a thorough analysis of the evidence, in my view she has a good grasp of the family dynamics, her conclusions are well reasoned and supported by the evidence and I pay close attention to them.

    Welfare checklist

    75. I turn now to consider both applications with reference to the matters on the section 1 checklist.

    (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

    76. EB's description of her meeting with A chimes in many ways with the way his parents have described him; intelligent, chatty, very matter of fact, accepting of the way things are, and not particularly wanting a change. He was not aware of his parents arguing. He said if he was with one parent and wanted to speak to the other one he would ring them, but did not particularly think about the other parent if he wasn't with them. He said he was bored with going to Tenerife, that Egypt had been good. He told EB that he hadn't been on holiday with his mum for 'years and years' because his father had his passport. He told her without prompting that he did want to go on holiday to Country X. He said spending time with his dad was like a holiday but the rest of the days he was with his mum, she only takes him to London with her when there is no school and when there is school he has to be at home so as not to be tired. He told her that Tuesdays he was with his dad and that 'we share the weekends'.

    (b) his physical, emotional and educational needs;

    77. A is nine and still relies on adults to look after his basic needs every day, to keep him safe, feed him, clothe him, entertain him, to support him in his education, plan activities for him out of school and to support him in building and sustaining friendships.

    78. He is developing a growing sense of the conflict between his parents and he must be protected from it. An incident like the one on 7th April 2017 should never be repeated. He needs to see his parents acting fairly and respectfully towards one another, not measuring his time as 'mine' or 'yours', but being parents together, communicating and making decisions together in A's best interests.

    79. In my judgment there needs to be a greater degree of certainty around arrangements, and perhaps slightly less flexibility. District Judge Jenkins and Deputy District Judge Edwards plainly had in mind the need for there to be a bit of give and take with a view to A's timetable and plans, but this seems to have developed over time between these parents as an idea that every weekend is up for grabs, that a missed contact must be made up, and that A's time is counted as either his or hers, but not his own. EB in her oral evidence expressed concern about the way the parents are negotiating the child arrangements:

    'I think that there is a really significant issue around who is in charge, and who is having the largest or smallest percentage, and there's lots of disputing where he stays, where he doesn't stay, who's allowed to make what decision, who's allowed to make whichever other decision. And I think that lies very much at the crux of this matter. Yes, the current issue is about foreign holidays, but also, there is a long history about the parents disputing what the arrangements should or shouldn't be on various given days.'

    80. I agree with her assessment. This chimes with the view of Mrs Justice Pauffley who asked for her closing remarks to the parties to be transcribed. She said as follows,

    'All I would end with is a request to both you and C that at some stage this point-scoring stops, because the endless war of attrition between you and your former wife is beginning, it seems to me, to impinge upon A. And the older he gets, the more aware he will become of how much distrust, bitterness, enmity there is between you two. It is a deplorable situation for any nine-year old child.'

    81. A has particular medical needs, due to his growth hormone and cortisol deficiencies. He takes hydrocortisol orally as a liquid three times a day, and has an injection of a growth hormone once a day. The most recent letter from his consultant in paediatric radiology, dated 5th October 2017 (before the growth hormone injections had started) records that A 'remains active and plays football, cricket, rugby and karate. He has good energy levels and his family have noted a significant improvement in his temperament particularly towards the end of the day and first thing in the morning.' He is due for follow up in April next year, when his thyroid function will also be tested. Both parents have been trained in administering the growth hormone injections and both have been trained in the steps to take to ensure the hydrocortisol is administered when A is ill; if he falls ill the dose needs to be increased, if he has diarrhoea or vomiting it must be given by injection.

    82. A needs to continue to be supported in his education. Both parents agree he should stay at his current primary school until the end of year 6 and then in September 2019, he will go to secondary school in [redacted].

    (c) the likely effect on him of any change in his circumstances;

    83. So far as a change to child arrangements is concerned, EB's opinion is that the father would not promote contact to mother if A lived primarily with him. In my judgment he does regard the giving or otherwise of consent to a change in arrangements as an exercise of power and he has been frank with the Court that he would like A to be spending more time with him so that he would have more power, more control, and would therefore be in a better position to negotiate with the mother. This view is not child focused. He has been inflexible in his responses to requests from the mother for holidays or swapped days, he is generally dismissive about the benefits to A of spending time with his mother compared to with him, and for these reasons I agree with the Cafcass officer's assessment.

    84. If the current regime were to remain broadly in place, A would continue to spend time with both parents. While the arrangements are obviously causing all sorts of difficulties and hostility as between the parents, so far as A is concerned, there is no evidence that the arrangements are causing him any particular distress or difficulty at the moment. There was a recent occasion when the father discovered that A was due to be collected from school by a childminder and considered it more appropriate that he should collect A himself. A similar incident happened in 2011. There is no evidence that A was unsettled by this at all, but this sort of incident is indicative of poor communication and point scoring that has to stop.

    85. So far as a change of circumstances that permitted A to travel abroad with his mother, there are a number of obvious benefits. A has a number of friends from different parts of the world, he is particularly interested in the natural world and international affairs; he has created his own blog. Independently, he set up a WhatsApp account to keep in touch with his family in Country X. It would be lovely for him to see them and spend time with them. He would have the opportunity to go on adventures with his mother, as well as with his father, and to share their passion for travelling. He would have a sense that there was equality between his parents as they both had the same opportunities to travel with him.

    86. Plainly if A were to be removed from England and not returned to the jurisdiction, separated from his father, English family and friends, and was living a life on the run with his mother, the change of circumstances would be dire.

    (d) his age, sex, background and any characteristics of his which the court considers relevant;

    87. A is nearly ten and generally his needs are of any other boy of his age. I have dealt above with his additional health needs. While A's father was dismissive of the notion of his having an identity that was both from Country X and English, in my judgment A does have a fundamental need to be encouraged to learn about, understand and to experience for himself his Country X heritage and identity.

    (e) any harm which he has suffered or is at risk of suffering;

    88. So far as the application for a child arrangements order is concerned, the risk of harm to A is that he becomes more aware and more exposed to the parental dispute. Otherwise, EB did not consider there to be any other safeguarding concerns with respect to either parent's day to day care of A.

    89. With respect to the application for leave to remove, I turn now to the three stage test formulated in the cases to which I have referred above.

    (i) The magnitude of the risk of breach of the order if permission is given;

    90. Having carefully considered all the evidence in the case, in my judgment the risk that A's mother will take him abroad and not return him to the jurisdiction of England and Wales is virtually non-existent. My reasons for coming to that view are as follows:

    (i) A is a British citizen, nearly ten years old. He has lived all his life in this country, and is settled at school and at home, with a strong network of family and friends around him. He is articulate and intelligent. He has expressed a desire to go on holiday to Country X but there is no evidence at all to suggest that he has any notion that it would be a nice idea to live there or that this is an idea that has ever been canvassed with him by his mother;

    (ii) In my judgment A's mother is demonstrably child-focused and respecting of A, his relationship with his father, his interests, his education, his friendships, and the life that he has been given up until now. While she wants him to know his Country X family and heritage, she has consistently promoted his relationship with his father, and she recognises that A's education and health needs are best met in this country;

    (iii) My assessment of the mother is that she is a credible and truthful witness and I accept her evidence that she has no intention of relocating with A whether to Country X or elsewhere in the world;

    (iv) There is no evidence that the mother has breached any Court order. She made it clear that if she were not given permission to move to Country X with A then she would wish to remain living in England with him. When the Cafcass officer recommended against permanent relocation she was accepting of the recommendation and sought permission to withdraw her application;

    (v) Until the end of 2013 she had travelled abroad many times with A. While the length of some of these trips may have made the father uneasy, he agreed to them all and there is no evidence that she ever came back later than she said she would or travelled with A anywhere other than where she had told his father they would be;

    (vi) She was the keeper of A's passport until November 2014. She made no attempt to use it to travel abroad with A during 2014. Had she wanted to abduct him she had the opportunity but she never took it;

    (vii) In 2015 she did obtain the mirror order at significant personal expense as requested, but because the dates of the holiday had passed, she did not even try to use it;

    (viii) She has lived in England for fifteen years. She is a British citizen. She has a business that is registered in this country. She has a network of friends here, in particular her close friend S who has a son A's age. In my judgment it is incredible that the mother would wish to turn her back on the life she has made in this country in order to deprive her son of his relationship with his father;

    (ix) I am not satisfied that the mother has ever sought to undermine that relationship, rather she has promoted it;

    (x) The father asserts that she is controlling of contact, but I have not been satisfied that there is any evidence of an occasion when she has ever kept A without his father's agreement, or prevented him seeing his father;

    (xi) My assessment of the father is that he has been 'uneasy' and 'nervous' about his son being away from him for a long time and that he didn't like it when A was away for a long time, but I am unpersuaded that he genuinely fears the mother would not come back to England.

    91. I have taken into account that the mother was born in Country X, that she has a large family there to whom she is very close, and that while her business is registered in England it is very much an international concern, which could presumably be run from a different country if need be. It would of course be more helpful to her cause had she married an Englishman and had more children in this jurisdiction, or if she owned property in England, or if she had a settled career as an employee or employer in a concern that was exclusively based in this country. But it is my task not to apply a standard checklist, but to consider the particular circumstances of this mother and this child, and for the reasons I have given, I am satisfied that there is no real risk of abduction in this case.

    92. The father has asserted that the mother has the protection of the Presidential Family of Country X. She accepted that the first lady was a client of hers and that she has made clothes for her. In my judgment it is a significant leap to assume that this means the mother is more likely to abduct her child than not and I make no such finding.

    (ii) The magnitude of the consequence of the breach if it occurs

    93. If I am wrong, and the mother is permitted to take A abroad to any other country of the world, and then abducts him and chooses to hide him from his father, the consequences for him would of course be devastating. He would be living the life of a fugitive, he would not see his father and older siblings, he would not see his friends, and he would have to start a new life under a great cloud of uncertainty and fear. His mother may find it difficult to earn a living, and to support him financially. While there would be doctors available to manage A's medical condition, he would lose the continuity of the current clinical team and the mother would not have free access to the hydrocortisol and growth hormones which is currently obtained by prescription. His health would be at risk.

    (iii) The level of security that may be achieved by building in to the arrangements all of the available safeguards.

    94. For the reasons I have given, if A were abducted, I accept the father's position that the potential safeguard provided by the mirror order and subsequent contempt proceedings would be of no tangible value to him, particularly where there is no proposal to put him in funds by the depositing of a bond.

    95. The mother's application is not limited to seeking trips to Country X, but to be able to travel freely with him all over the world, including to the United States (signatory to the Hague Convention) and to China (Hong Kong is a signatory but mainland China is not).

    96. It would be impossible to obtain expert evidence about the safeguards available in every possible country to which the mother might theoretically flee with A. I agree with the father that if the mother were given permission to fly only to Hague Convention countries, or even if she were limited to travel within Europe, if she really were determined to abduct her son, then she would probably be able to find a way to a non-Hague Convention country in due course. Theoretically she could hide with him in any corner of the world. If that were the identified risk, there is no expert evidence which could satisfy a Court that there was an available and affordable legal process that could guarantee A's safe return if abducted to an unknown corner of the world. There would be no sum of money that could sensibly be put in a bond so as to provide the father with a fighting fund.

    97. The father himself suggested that he would be satisfied by the mother providing a letter of guarantee from the President of Country X. I would not be so satisfied; I have no evidence that such a guarantee would work and the mother says that making dresses for his wife does not mean that it is within her power to obtain such a letter.

    98. In my judgment however, there are safeguarding measures that would ameliorate the risk of abduction to a certain extent and provide reassurance to the father. I have identified the following:

    * It would be a condition of travel that the mother had provided flight details, and details of the address where she and A were staying;

    * The father would be permitted to have facetime/skype contact with A once or twice during a two week holiday;

    * In the first instance trips abroad could be limited to two weeks;

    * The mother would provide an undertaking to the Court that she would return A to the jurisdiction at the end of any foreign holiday;

    * It could be recorded as a recital to the order the Court that she would spend each night of the holiday with A (I do not mean that she would never go out for an evening and leave him with relatives or a babysitter, nor that he might never go on a camping trip or sleepover for a night with cousins or friends when on holiday, but that generally he and his mother would be staying in the same location);

    * The mother would provide an undertaking to the father that A will attend primary and secondary school in England and that she would not change his school without agreement of the father.

    99. The consequences of breaching such an order would mean that if the mother did overstay with A, when she returned to the UK she would be liable to an application for contempt of Court and the consequences would be that she may have to pay a fine, take part in unpaid work or be committed to prison. The father would have grounds to make an application to the Court for a prohibited steps order and she would be at risk of losing the opportunity to travel on holidays with A again.

    (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

    100. Both A's parents love him and are devoted to him. Both are well capable of meeting all his day to day needs.

    101. While both parents have been involved in the conflict that has continued unabated for many years now, for the reasons given within this judgment I have found that it is A's father who considers himself to be fighting a battle for control of contact arrangements.

    102. The issue of foreign holidays has been ongoing for some years, but it is the father who has met every application with his own application for a change in child arrangements so that A should come to live with him.

    103. The father's rationale for a change to the child arrangements order is based on a mathematical approach; counting the nights that A spends with each parent and calculating the percentages. The father says he makes his application in order to achieve parity for him in negotiations. His proposals in my judgment do not seem to have been thought about from the perspective of the lived experience for A day-in-day out of zig-zagging in between two different homes. He is not in my view child-focused when he insists on exploring with the mother where A is and who is caring for him for every minute of his life and if he discovers that A is not with his mother when he could have been with him, taking matters into his own hands and imposing his own arrangements.

    104. I agree with the assessment of the Cafcass officer that if A lived with him he would not be able to promote contact. The father thinks he might be more inclined to agree to A spending time with the mother if he started from a platform of seeing A more, but he has been rigid and inflexible and in my judgment his starting point is his needs, and his assessment of what should happen, rather than what might be in A's best interests.

    (g) the range of powers available to the court under this Act in the proceedings in question.

    105. I remind myself that whatever orders are being sought the court can make a whole range of Section 8 Children Act Orders or indeed no order at all if it considers that to be appropriate.

    Child arrangements order

    106. The father's proposal has A being collected by his mother from school on a Monday, taken by her to and from school on Tuesday, and on Wednesday morning. The father would then collect him and take him to and from school on Thursday and on Friday morning. His mother would collect him and he would stay with her until Wednesday morning, then his father would have him from Wednesday afternoon until the following Monday, when he would be collected once again by his mother.

    107. Given that the father works from nine until five every week day, there are some logistical issues in his having so many school runs. The plan is confusing and while it changes a lot of the arrangements for drop off and pick ups which are mostly done by the mother at the moment, it does not actually build in a huge amount more quality time for A with his father. It is a lot more complicated for A and his teachers to understand than 'every Tuesday and we share the weekends'. It gives rise to confusion for school staff as to which parent to call first in the event of A being unwell or the school being closed, and who would be responsible to care for him. Given the level of conflict between the parents it leaves open the possibility of more disputes as the parents have effectively to hand over to each other on a much more regular basis than they do now. There is fertile ground for criticism of what went in the lunch box or whether games kit was washed or whether help was done with the homework.

    108. A does after school activities including karate on Wednesdays and Fridays. If his father did not support him in taking him to these activities it would be a loss for him. If his father did take him to these activities, it would have been a lot of trouble for him to get back early from work to collect A only to take him out again.

    109. A has a loving and established relationship with both parents. They live relatively close to one another and to his school. His relationship with his father is secure and stable. There is no obvious need for him to divide his time up in the way proposed in order to improve the relationship.

    110. Having regard to all the factors on the welfare checklist, the evidence given by both parents and having particular regard to the recommendations of the Cafcass officer, my conclusion is that the term-time contact should remain as it is. There is no obvious benefit to a change and in my judgment it carries with it a risk of confusion and further conflict which would be harmful to A. If both parents agreed, I would not see a huge difficulty in the weekday night with A's father being on a Wednesday rather than a Tuesday.

    111. I suggest continuing weekends as they are i.e. running from a Friday after school until 5.30 p.m. on Sunday. If they run to Monday morning then A will not have seen his mother from Friday morning until Monday afternoon and she will not have had a chance to prepare with him for the week of school ahead.

    112. I consider the school holidays should be split more evenly, provided the father has availability. I would suggest that A spends a full week with his father at Christmas, Easter and for three weeks in the summer holidays. I would suggest the summer holidays are split weeks one, two, five to one parent and weeks three, four, six, to the other – or similar.

    113. Mindful of the father's evidence that he had limited time off throughout the year, I would not suggest splitting the half-term holidays at this time.

    114. The order will provide that there shall be further or alternative contact as the parents may agree. However, this is not to invite a constant debate about every weekend, but to recognise that for reasons to do with A, and A alone, sometimes there needs to be a change. The sort of situations where there is a change might be for example if A has a residential trip with school or scouts which means a weekend may need to be swapped, or if there is a family wedding or other significant event, or one of the parents is exceptionally unable to have A on a certain date. In such circumstances, it is reasonable to ask the other parent to help out, but it should not be the case that they must always be approached first. Parents are perfectly entitled to arrange for their children to spend time with family and friends in their absence. I would not generally regard it as a reason to change the child arrangements order for one parent to offer to A a treat, such as going to a particular sporting event. In my judgment this undermines the parenting of the other and puts A right in the centre of potential conflict. If he chooses to go to the event he is disloyal to the parent with whom he should have been spending time, if he chooses not to, he is disloyal to the parent inviting him.

    Holidays abroad

    115. The overriding consideration for the Court in deciding whether to allow a parent to take a child to a non-Hague convention country is whether the making of that order would be in the best interests of the child.

    116. I am in no doubt that there are very significant benefits to A being allowed to travel abroad with his mother and I consider that it would be in his best interests to do so.

    117. It would afford him the opportunity to share adventures with her, to have fun with her and for her to be recognised as an equal parent to his father, equally trusted to keep him safe. In particular in travelling to Country X he would experience a rich Country X cultural and family life, re-establishing relationships with grandparents, cousins, aunties and uncles, and learning about his cultural heritage. I agree with EB, that this is very important for him as he builds his identity as a British child of mixed heritage.

    118. I accept that if abducted, it would be incredibly difficult to secure A's return, and that so far as Country X is concerned the legal safeguards proposed are of no tangible value. If taken away and hidden in another country, there is no evidence of any other legal safeguard that would enable him to be recovered. I accept that if abducted and not returned, the consequences for A would be of great magnitude and would be devastating for him and for his father. However, for the reasons I have given, I consider the risk of abduction to be virtually non-existent. I consider that in all the circumstances of this particular case it is theoretical only. In the circumstances I do not then need to go on and consider whether the advantages to A of travelling abroad outweighs the risks to his welfare of going, but for the avoidance of doubt, my firm conclusion is that the advantages do significantly outweigh any risk.

    119. I do not accept the father's view that A's mother or the Country X medical system would be unable to meet his particular medical needs abroad. I do not accept the father's view that A would be at unacceptable risk of terrorism or other violence if he travelled with his mother. As he did when he went to Egypt, the mother is perfectly capable of researching a holiday destination, taking a balanced view of the risks and benefits for her son, and taking steps to protect him as best she can.

    120. In my judgment while of course not offering any sort of cast-iron guarantee for the father, the safeguards that I have outlined above would meet some of his objections, and would provide him with some reassurance about his son in his mother's care while abroad.

    121. The prohibited steps order will be discharged and those safeguards are incorporated into a new order which gives permission for both parents to take A out of the jurisdiction for limited periods.

    122. As my findings are that I trust the mother and do not regard her as an abduction risk, I see no reason why she should not hold A's passport. I would expect the passport to be with the parent who last took A on holiday and to be handed over to the parent who is taking him on the next holiday no later than two weeks before departure.

    123. The child arrangements order I make will record that A lives with both his parents under a shared care arrangement and will set out the times that he spends with each of them, broadly as described above but to be refined in discussion with the parties when this judgment is handed down.

Judgment, published: 10/01/2018


Published: 10/01/2018


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