(Sitting at Middlesbrough)
The Law Courts Centre Square Middlesbrough
B e f o r e :
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MR L. DOWLING (instructed by Watson Woodhouse Solicitors) appeared on behalf of the Defendant.
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MR JUSTICE MOSTYN:
fifty-seven. The mother is aged thirty-six and was born in Nigeria. The father worked for many years in West Africa, predominantly in Nigeria, and it was in Nigeria that he met and began a relationship with the mother in 2011. The mother and father were married in 2013. They lived their married life in Nigeria and in early 2017, their twin daughters, A and B were born, and who are now therefore aged three years and nine months.
contain himself during those calls and so, as a result, she was forced to stop that form of contact.
saying that she intended to go "soon". However, the father later in his oral evidence retreated somewhat from that statement and said to me in clear terms, "I didn't know what day they were travelling on. It could have been any time."
14 October 2020, the ticket was reissued and showed a flight for the mother and the children leaving Newcastle, flying via Amsterdam on 11 December 2020 and the mother and children returning on Tuesday, 12 January 2021.
That was, of course, over a month after the mother had told him that she was planning to go to Nigeria in December, as I have found.
"A without notice application will normally be appropriate only if
(a) there is an emergency or other great urgency, so that it is impossible to give any notice, however short or informal or
(b) there is a real risk that if alerted to what is proposed, if tipped off, the respondent will take steps in advance of the hearing to thwart the court's order, or otherwise to defeat the ends of justice."
"23. 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. 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 into 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…"
mother be allowed to take them to Nigeria. I will deal with all aspects of the father's claim.
unlikely as to render the subsequent factors to be brought into play as almost insignificant. It is my finding, and it is a finding of a future fact admittedly, that the mother is going to comply with the order of the court and return the children at the conclusion of the trip to Nigeria.
"This court respectfully requests that any court in Nigeria which is considering an application by the father for the return of the children to England should –
(a) recognise that the children are habitually resident in England and Wales, and
(b) recognise that the mother has promised on oath to return the children to the jurisdiction at the conclusion of their holiday in January 2021.
Accordingly, this court respectfully requests its counterpart court in Nigeria to make a summary order for the return of the children, with the maximum expedition and the minimum costs to the father."
she had six rental properties, she would certainly not be subsisting on low wages in this country. She did have, she admitted, one rental property, which was sold in 2017.
of a young age herself. I therefore do not place any weight on the impact of the pandemic in reaching my decision.