Family Court Refuses Temporary Child Removal to Pakistan: Welfare of Child Paramount

Introduction

The case of T v T: EWFC 243 [2023] EWFC 243 is a pivotal example of the family court’s approach to applications for temporary child removal to a non-Hague Convention country. This judgment, delivered by Mr. Justice Peel, highlights the paramount consideration of the child’s welfare and the careful scrutiny required in cases involving international travel where abduction risks exist.

Key Facts

The case concerns a mother’s (M) application to take her daughter (Z) to Pakistan for a holiday over the Christmas period, opposed by the father (F). Notably, the United Kingdom has not accepted the accession of Pakistan to the 1980 Hague Convention; thus, its provisions are not operative between the two states. The court must consider the application solely on welfare principles, absent the international legal framework for child abduction cases.

The judgment encapsulates the complexities of such cases, taking into account the previous domestic abuse findings against F, the current contact arrangements, and cultural considerations of Z’s identity linked to Pakistan.

Legal Principals

The overriding precedent is the child’s welfare, informed by previous case law such as Re R (A Child) [2013] EWCA Civ 1115. Patten LJ’s guidance in Re R is pivotal, emphasizing that the child’s best interests must outweigh risks of abduction. Additionally, the court must ensure safeguards are in place to minimize these risks and secure the child’s return.

The judgment also reflects the importance of expert evidence concerning the effectiveness of safeguards in the non-Hague country, although it recognizes exceptions exist as in K v K [2020] EWDC 96. Mr. Justice Peel acknowledges that while expert evidence was provided on the Pakistani legal context, it fell short in offering assurances of swift enforceability.

Another significant principle is the procedure concerning qualified legal representation (QLR) for cross-examination when dealing with vulnerable witnesses, stemming from domestic abuse. The judgment adheres to the guidance issued by the President, confirming the court’s duty to proceed justly in the absence of a QLR.

Outcomes

Mr. Justice Peel refused M’s application for the following reasons:

1. The magnitude of risk of Z’s retention in Pakistan, although relatively low, paired with the severe consequence of such a breach, would weigh heavily against Z’s welfare.
2. The contact arrangements between F and Z are new and require stability.
3. The timing for the proposed trip would be rushed, potentially unsettling for Z, and would interfere with the established Christmas contact schedule with F.
4. The necessity of a mirror order in Pakistan to reassure and benchmark expectations for Z’s return, although not an absolute guarantee.

The case concludes with directives that:

• A mirror order should be obtained before any trip to Pakistan.
• Z’s habitual residence is the UK, and any removal or retention overseas would breach court orders.
• Future applications for Z’s travel to Pakistan should be referred to a Family Presiding Judge for appropriate allocation.

Conclusion

In T v T: EWFC 243, the court’s refusal to permit temporary removal to Pakistan, in the absence of reciprocal Hague Convention safeguards, underlines the stringent analysis employed in such applications. The legal principles centred on the child’s welfare, risks of wrongful retention, and available safeguards to ensure return, form the cornerstone of judgment in non-Hague country removal cases.

The judgment affirms the delicate balancing act between enabling a child to connect with their cultural roots and ensuring their safety and established relationships within their habitual residence are not jeopardized. The provision for future considerations, with the requisite safeguards, leaves the door open for lawful international travel under more stable and secure circumstances.