In a recent case, a Kenyan father has won his appeal against the lower court’s decision to allow the Kenyan mother to take their child to Kenya on holiday. In this case, the couple were married in East Africa and later moved to the UK after their child was born. After separation, father applied for a ‘prohibited steps order’ to prevent mother from taking the child to Kenya and whilst this was resolved, father later made another application leading to the present case. The crux of father’s case was that he considered there to be a real risk that mother would abduct the child whilst there by settling and refusing to return the child back to the UK.
Mother contested father’s application. At the first hearing, in spite of the judge noting that father could not seek a remedy through the Kenyan jurisdiction for the return of the child if mother decided to stay and further, in spite of the judge observing that mother did not have the means to make a ‘surety’ payment (being a deposit or bond against not returning the child), the judge allowed the mother to take the child to Kenya but with certain conditions.
On appeal, the Court highlighted that the most important consideration is the child’s welfare. Further, it emphasised that if there is a risk that mother would make off with the child when arriving in Kenya (which the judge at the first hearing did) the Courts should always then undertake a balancing act between the identified risks and the benefit of visiting the country. Any measures and safeguards that are put in place must be within reach and available to any UK parent. Courts should either be extremely restrained when there is evidence of a risk of abduction and refuse to allow the removal or set out transparent reasoning as to why the decision to allow was made.
The Court of Appeal decided that the judge at the first hearing should have undertaken the balancing exercise and had he done so, he would have concluded that the risks of abduction prevailed over any benefits that may be gained from the child being in Kenya and refused permission to allow the child to go. The Court of Appeal issued a prohibited steps order denying either parent the ability to take the child outside of the jurisdiction without the other’s agreement or the Court’s permission.