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T v T [2023] EWFC 243 : what if permission is sought to remove a child temporarily to a country where the Hague Convention is not yet operative between the UK and that particular country? What if there is no QLR?

This case concerned a child, aged 5 years old, and an application by the mother (“M”) for permission to take the child to Pakistan for a holiday. The father (“F”) opposed the application. The M was represented but the F was a litigant in person. Findings had been made against the F of controlling and coercive behaviour following a fact finding hearing.

Pakistan is a signatory to the 1980 Hague Convention however, the UK has not yet accepted its accession, so that the provisions contained therein are not applicable as between the two states.

Mr Justice Peels reminds us in the judgment of the leading authority in applications where permission is sought to remove a child temporarily to a country where the Hague Convention is not yet operative between the UK and that country - Re R (A Child) [2013 EWCA Civ 1115. Key parts summarised:

  • 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.
  • 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.
  • Thorpe LJ´s judgment in Re K confirms applications for temporary removal to a non-Convention country will inevitably involve consideration of three related elements:
  1. i) the magnitude of the risk of breach of the order if permission is given;
  2. ii) the magnitude of the consequence of breach if it occurs; and

iii) 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.

Mr Justice Peel refused the M’s application: “Weighing up the arguments, I have concluded that M's application to remove Z to Pakistan over Christmas should be refused. Although I assess the likelihood of disobedience to the English court order as relatively low, the detriment to Z of breach would be very high. The contact arrangements are newish, and need more time to settle down. A period of stability (particularly after so much litigation) might build up a greater degree of trust between the parents. I also take the view that the benefit of a trip to Pakistan during this holiday period is outweighed by the benefit to [the child] of spending a week over Christmas with F, which she would miss if she went away. Finally, in my view a mirror order should be obtained before any trip to Pakistan takes place. I accept that this may not provide certainty, but it would provide a degree of reassurance and set at least an indicative benchmark in Pakistan.”

QLR Issues:-

Given the findings against the F of controlling and coercive behaviour, the court ordered a qualified legal representative ("QLR") to be appointed for the purpose of cross-examining M on behalf of the F at the final hearing. Ultimately, no QLR was appointed and so the court (prior to the final hearing) directed that in the event a QLR had not been appointed ahead of this final hearing the F shall file a list of questions that he intends to ask the M at the final hearing. Unfortunately, the F was not aware that no QLR could be appointed until the morning of the final hearing and so had not prepared a list of questions.

Mr Justice Peels reminds us of paragraphs 16-20 of the View from the President's Chambers dated July 2023 (not formal guidance). Mr Justice Peel states: “This passage from the President, although not formal guidance, clearly sets out the problems with the QLR process and the need for the court, where appropriate, to take steps to ensure so far as possible, and notwithstanding the absence of a QLR, that the case can be dealt with justly. Otherwise, multiple adjournments would be required in the (possibly forlorn) hope of securing the services of a QLR, and such delay would in itself usually be contrary to the interests of justice, contrary to the interests of the child, and potentially would renew, perpetuate and/or exacerbate the impact of domestic abuse on the vulnerable party.”

In this case the evidence on factual matters was largely agreed and there was a degree of urgency. Both parties agreed that neither would ask questions of the other, but that judge would ask such questions of each of them as he thought fit. There was no cross-examination.

The judgment can be accessed here - T v T [2023] EWFC 243 (12 December 2023) (bailii.org)