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Father fails to appeal order allowing mother to take child to Iraq

I suspect that that headline may raise a few eyebrows in some quarters. If one parent fears that the other may take their child to a country that isn’t a signatory to the Hague Convention on Child Abduction (and particularly a country that has recently experienced instability) and not return the child then surely the court will not allow the child to be removed from this country?

Well, it’s not as clear-cut as that. As the recent High Court case B v A showed, the court will not willy-nilly impose a removal ban in such circumstances. Instead, it will consider all of the facts, which may lead it to a different conclusion.

The facts

The relevant facts in B v A included:

  1. That the parents were both born in Iraq.

  2. The father moved to the UK in 2002.

  3. The father returned to Iraq in 2012, when he met the mother.

  4. The parents were married in Iraq in 2014.

  5. They have one child, who was born in Iraq.

  6. In 2016 the family moved to the UK. The father said it was their intention to remain in the UK permanently, but the mother said it was only for long enough for her to get a spousal visa and leave to remain.

  7. In 2017 the mother took the child to Iraq, after the father went to the USA to train for a job.

  8. The father then gave up his job and travelled to Iraq.

  9. In October 2017 the father removed the child from Iraq to the UK, without the mother’s consent, or even informing her.

  10. The mother then returned to the UK.

  11. Child arrangements proceedings were instituted and a hearing took place in January this year. By then it was accepted that the child was habitually resident in the UK, and the judge accepted that the mother intended to remain in the UK and to return to Iraq regularly for holidays to see the maternal family.

  12. Child arrangements were largely agreed, including that the child should live with the mother. However, the father sought a prohibited steps order (‘PSO’) prohibiting the child’s removal from this jurisdiction.

  13. The court dismissed the PSO application, and the father appealed against this decision, claiming that the judge failed to consider adequately the risk that the mother would not return the child to the jurisdiction and the risk to the child of harm if he were to be retained; that the judge failed to adequately assess the risk to the child’s safety and security in Iraq; and that the judge had then failed to put adequate safeguards in place.

The decision

The appeal was heard by Ms Justice Russell. I won’t go through her reasoning in detail, but the most important point was that the judge, having heard all of the evidence, concluded that the risk of the mother retaining the child in Iraq was low. Indeed, the risk of the father abducting the child was greater, he having already abducted him from Iraq, in October 2017. Further, it would be beneficial for the child to visit his wider family in Iraq.

As to the child’s safety and security in Iraq, there was no evidence before the court that the father himself was either at risk or considered himself to be at risk during the time he chose to live there between 2012 and 2016. The judge found that the father did not genuinely believe that the child’s safety was at risk in Iraq.

And as to the issue of safeguards, it followed from the low risk finding that there was little need of any (the mother did, in fact, offer additional safeguards).

In the circumstances, the father’s appeal was dismissed.

Ms Justice Russell’s full judgment can be found here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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