The importance of expert evidence when applying to temporarily remove a child to a non-Hague Convention country
Expert evidence is often sought by parties in support of applications brought under the Children Act 1989 where the court is asked to consider the merits of travel to and from foreign jurisdictions, in particular when the country in question is not a signatory to the Hague Convention (on the Civil Aspects of International Child Abduction). Lord Justice Ryder, sitting in the Court of Appeal, recently allowed a father’s appeal against an order granting the mother leave to travel with the child to Iran for a holiday (Re H  EWCA Civ 989). The father is a political refugee and has fears that the child may be held by the authorities in Iran or that the mother may not return the child to the jurisdiction. Both parties applied for permission to adduce additional evidence on the appeal. Ryder LJ handed down his judgment on 17 July 2014. Ryder LJ does not criticise the judge at first instance, noting the lack of sophistication of the evidence presented to the court in the original application and the analyses that the judge had relating to the child, and the general issues that arise in relation to non-Hague Convention countries and Iran in particular. He does, however, find that the judge was wrong to have reached the determination that he did “without further evidence or analysis of the risk, the consequences and the available safeguards.” Ryder LJ takes the opportunity in his judgment to look more closely at these central issues which he considers to be of crucial importance when faced with an application of this nature. He goes on to develop his initial observations, setting out in more detail the questions he asks himself when dealing with the present case. In his words, these are:
(i) the magnitude of the risk if permission is given; (ii) the magnitude of the consequence if the child cannot be returned or the order is breached; and (iii) whether the risk and the consequences can be provided for by the available safeguards.
In exploring these issues Ryder LJ draws usefully from Patten LJ’s judgment in the case of Re R (A Child)  EWCA Civ 1115 in which it was held:
“The overriding consideration of 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 UK-based parent. 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 an order. If the judge decides to proceed in the absence of expert evidence, then very clear reasons are required to justify such a course.” – Emphases added The reader’s attention is drawn to Patten LJ’s acknowledgment, in his judgment in Re R, of the need for “competent and complete” expert evidence when looking specifically at the effectiveness of any suggested safeguarding measures. Ryder LJ explores the reality in cases where such measures are not in place. In doing so he finds the absence of measures alone “does not preclude a decision being made on an application such as that made in this case” but notes the call for “rigorous scrutiny of the risk involved.” Risk is by its very nature notoriously difficult to assess and Ryder LJ acknowledges the difficulty faced by the lower courts in particular when dealing with risk in this context, particularly where the evidence before them is not sufficient to enable a proper determination of the issues. He identifies the advantage of having cases such as these heard by judges of the High Court and goes further by stating that High Court judges are less likely to require expert evidence and will have “a good understanding of international cases” and are therefore “more likely to be able to take judicial notice of international circumstances in an appropriate case.” It is important to always remember that the risk of a breach must be considered alongside the magnitude of the consequences of such a breach for the child (See Thorpe LJ’s judgment in Re K (Removal from Jurisdiction: Practice)  2 FLR 1084). Ryder LJ acknowledges Thorpe LJ’s comments in Re K and provides that such consequences of a breach can be assessed either by taking such judicial notice or by hearing expert evidence. In practice we must balance the risks with the benefit to the child, whilst taking into account the consequences if the child cannot be returned or the order is breached. Once you have identified the risks, and the consequences of these, you must then set about ensuring that suitable measures are in place to safeguard against them (or be prepared to have those risks scrutinised by the court). This task will be made all the more difficult when dealing with non-Hague Convention countries and could well require detailed evidence from experts based in that foreign jurisdiction. Remember to re-read Patten LJ’s judgment in Re R and, where you have safeguards in place, try to ensure that these are “capable of having a real and tangible effect in the jurisdiction in which they are to operate” and “capable of being easily accessed by [a] UK-based parent.” In the writer’s view it is critical that those seeking an order on an application at first instance ensure that they clearly identify the risks and consequences of a breach and that they secure expert evidence detailing the safeguarding measures in place, enabling the Court to positively satisfy itself that the advantages to the child of visiting that country outweigh the risks to their welfare. Needless to say the veracity of such evidence is likely to be a key factor for the court when deciding whether or not to grant permission to travel on an application of this nature.