Family Court Grapples with International Child Abduction Risks in Re. HTD and HTE Case

Citation: [2023] EWFC 227
Judgment on

Introduction

In the case of Re. HTD and HTE [2023] EWFC 227, the Family Court at Milton Keynes was tasked with determining the child arrangements and the temporary removal of children from the jurisdiction to Malaysia and Hong Kong, two jurisdictions not party to the Hague Convention on the Civil Aspects of International Child Abduction 1980. The case highlights important legal principles concerning the welfare paramountcy, international abduction risks, and the application of court-sanctioned safeguards against the risk of non-return of children from foreign jurisdictions. The judgment delivered by Paul Bowen KC, acting as a Deputy Judge of the High Court, provides an illustrative example of how Family Courts approach such serious and complex matters.

Key Facts

In this case, two young British national children were subject to parental dispute post-separation. The South African father applied for a shared ‘live with’ order and a prohibited steps order to prevent their removal from the UK. The dual British-Hong Kong national mother opposed and sought orders for the children to live with her and to temporarily remove them from the UK for familial visits to Hong Kong and Malaysia. Previous allegations of domestic abuse, local authority involvement, and contradictory behavior by both parents were material facts influencing the court’s consideration.

The case elucidates several legal principles:

  1. Child Arrangements Order (s 8 of the Children Act 1989): The court applied the welfare checklist in s 1(4) of the Children Act 1989, emphasizing the children’s need for stability and the extent of contact with the non-residential parent.

  2. Prohibited Steps Order (s 8 of the CA 1989): This principle prevents a parent from removing a child from the jurisdiction without consent from all parties with parental responsibility or leave of the court.

  3. Specific Issue Order (s 8 of the CA 1989): This order can grant a parent permission to carry out a specific action, such as temporarily removing a child from the jurisdiction against the wishes of another parent.

  4. Risk Assessment in Temporary Removal to Non-Hague Convention 1980 Jurisdiction: Rigorous scrutiny is given to risks of abduction, the consequences of a breach, and available safeguards. Re. A and Re. H establish necessary and proportionate measures to mitigate the risks, including adherence to the Hague Convention 1980 principles.

  5. Welfare Paramountcy (s 1(1) of the CA 1989): The paramount consideration of the child’s welfare guided the court’s decision, balancing the need for cultural and familial connections against the risk of abduction and parental conflict.

  6. Section 91(14) of the CA 1989: An order under this section can prevent a party from making further applications without the court’s leave, reflecting on P. (A Minor) and A (A Child) for repeated, unreasonable applications.

  7. Contempt of Court: The case also addressed potential contempt of court under s 12 of the Administration of Justice Act 1960 and s 97(2) of the CA 1989 related to the mother’s publication of details online, considering issues of confidentiality and the paramountcy of the child’s welfare.

Outcomes

The judge ordered the continuation and variation of existing contact arrangements, granting more contact time with the father. However, the judgment postponed a final decision on the shared ‘live with’ basis of care due to pending investigations and reports. A 12-month prohibited steps order was issued, stopping the mother from removing the children to Hong Kong or Malaysia due to a moderate risk of abduction, which outweighed the potential benefits of travel. Lastly, a s 91(14) order was made to prevent the mother from initiating legal proceedings without the court’s leave for a 12-month period due to her unauthorized publication of case details.

Conclusion

Re. HTD and HTE reflects the delicate balance Family Courts must strike between promoting a child’s cultural ties and safeguarding against the risk of international child abduction. The judgment serves as a prudent reminder of the complexity of cases involving international elements and the courts’ reliance on expert legal advice when addressing the enforceability of safeguards in different jurisdictions. Legal professionals in the UK must be cognisant of the detailed welfare analysis and rigorous legal mechanisms employed in such cases to effectively advise clients facing similar disputes.