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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> X-N (A Child), Re  EWCA Civ 1775 (25 November 2014)
Cite as:  EWCA Civ 1775
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ON APPEAL FROM SWINDON COUNTY COURT
(MR JUSTICE BAKER)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE McCOMBE
LORD JUSTICE VOS
|IN THE MATTER OF X-N (A CHILD)|
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Mr Rex Howling QC (instructed by Brethertons LLP) appeared on behalf of the Respondent
Crown Copyright ©
"some evidence I have earlier presented into court that mother was planning to take [J] abroad in perhaps a surreptitious manner."
Then at paragraph 28 he say this:
"There was a period (winter 2012/13) when I suspected a planned abduction - as per my written evidence provided in earlier hearings, after which all sorts of pejorative wordings were bandied about as I grappled with what if anything I could do to find legal safeguard -..."
"19. At this hearing today the mother's given evidence and I was able to ask questions and gauge her responses and form a view as to her reliability. The father also was able to ask her a few brief questions. The mother totally refuted the idea that she was involved in moving, channelling or laundering international funds. She insisted that she is a British citizen, settled here, plans to return and has no intention of abducting J. The father did not give evidence but he made a further oral statement, all of which I have taken into account."
Again both parties confirm that this is, in broad terms, a description of what took place.
"23. Having heard the mother give evidence in this case I entirely accept her evidence. I am entirely satisfied that she is telling me the truth when she says that she does not intend to abduct J, that she and J are British citizens and are going to live here. She is in a good job, has a new relationship with a British man who lives here. J is enrolled in primary school here.
24. Having heard her I am very confident that she is telling me the truth. There is in my judgment no reliable evidence of any risk of abduction in this case. Accordingly I consider the risk of any breach of the order to be negligible. I accept that were a breach to occur and were the mother to fail to return J to this country at the conclusion of the holiday, the consequences would be very serious. But as I think the risk of that happening is negligible it seems to me that the consequences of any breach are not a significant factor in this case.
25. The mother has a house here and if she were to fail to return J to this country steps could be taken against that property. In addition, the mother is willing to offer to lodge her passport with a Chinese lawyer who has named and identified and agreed to hold the passport and J's passport on arrival in China pending their return.
26. I do not consider that the level of risk requires any such safeguards but if it would provide reassurance to the father, as I think it may, I would accept an undertaking by the mother to lodge her passport and J's passport with the Chinese lawyer for the duration of the stay in that country.
27. Looking at J's welfare as a whole, I consider it is unquestionably in her best interests to see her family, to travel to China this summer. It is important that she keeps in contact with her family and with her Chinese heritage, particularly as her grandfather is unfortunately not in good health. I am sure it would be an exciting trip for J and something that would greatly benefit her. There is, I find, no risk of harm befalling her as I am confident that she will be returned."
What is the appeal about?
"...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.
25. As the quotation from Thorpe LJ's judgment in Re K (see paragraph 19 above) confirms, 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 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.
It is necessary for the judge considering such an application to ensure that all three elements are in focus at all times when making the ultimate welfare determination of whether or not to grant leave."