![ZE23P01539 - [2025] EWHC 1403 (Fam)](https://backend.juristeca.com/files/emisores/logo_0FrGysm.png){kind=logo}
Trip to Country R / Prohibited Steps Order
Trip to Country R / Prohibited Steps Order
The applicants are worried AB would not be returned from Country R if the respondent were allowed to take him.
The respondent wants to take AB because that is her childhood home and her heritage, and her father is old, and she wants AB to spend time with him before he dies.
Ms Callaghan is against such a trip because Country R is a non-Hague country and there is a real risk that if AB is allowed to go there, he will not be returned. That risk derives from two different but related sources:
the animosity between the parties which might lead the respondent to take the view that she and AB are better off without them,
the fact that the applicants are gay, and the Country R family, in particular the father, have been deceived by way of a fake marriage to conceal the applicants’ homosexuality, such that they might pressurise her to stay.
Ms Callaghan recognises the importance to AB of experiencing his heritage, and so suggests the parents review the situation when AB is 6.
The applicants just say AB should not go: the risk of him not being returned is too great. They point to an increase in the religious engagement of the respondent, and the fact that she no longer sees herself as wanting to have relationships with women - the issue that caused her to seek asylum here.
The respondent says that her life is in this country. Her home is here. Her friends are here. She draws attention to the fact that she has already taken AB to Country R and returned him.
The respondent attempted to offer some form of surety at the beginning of the hearing to reduce the risk of non-return. She has suggested:
a bond of £25,000 raised from her family;
a charge over her father’s home in Country R, though the charge, as things stand, has fallen away given the expert evidence as to its lack of enforceability;
oaths by her and possibly members of her family taken on the Koran promising return.
I was referred, through a number of cases, to the analysis of Patten LJ in Re A (Prohibited Steps Order) [2014] 1 FLR 63, and in particular to the three related elements detailed in paragraph 25:
magnitude of the risk of breach of the order;
magnitude of the consequence of the breach if it occurs;
level of security that may be achieved by building in safeguards.
It was conceded by Ms James that the consequence of breach would be catastrophic, because Country R would ignore orders of this court calling for the return of AB.
The argument was in substance around the magnitude of the risk that the respondent would not return. There was some argument about the security but I need not dwell on this: £25,000 could be seen as a price that could be paid to secure a move, and the oath, without any expert evidence as to the effect of breach of an oath on the Koran, amounted to no more than another ‘trust me’ argument. I make clear that on any future application on this issue (should there be any) these possible sureties should be raised sooner and proper expert and other evidence (for instance as to the wealth of the respondent’s family) obtained so that they can be properly evaluated.
What follows are the factors that having heard the arguments I consider I should bear in mind, pushing either way:
AB has already been taken to Country R, and he was returned.
But it is accepted that the relationship between the parties has substantially deteriorated since that trip. Further I find it significant that the respondent is fixed in her view that the second applicant should not have parental responsibility – indeed I was told in closing submissions that it would be something considered catastrophic by the respondent - and I am making an order which will grant him parental responsibility. So, the deterioration of the parties’ relationship and the order that I am now making means that the past return cannot be a reliable indicator of a future return.
The respondent was sufficiently concerned as to the way her sexuality might be treated in Country R as to seek and be granted asylum in this country. Albeit I accept that recent political developments have ameliorated the anti-homosexuality nature of Country R society it is appropriate to hold in mind that there might be some risk that there may be society or family pressure not to return AB to the applicants, given the attitude to homosexuality.
On the other hand, that the respondent did make the effort to obtain asylum in this country and citizenship here and has built a life for herself here and that her life as a woman in Country R would appear to be much more limited makes it unlikely that she would want to change course and live in Country R.
I must hold in my mind the importance to AB of meeting his grandfather and experiencing his mother’s childhood home, and culture.
I note from the expert evidence that if the respondent were to travel to Country R on her British Passport then neither she nor AB would be entitled to any benefits in Country R (including health care and education); that a route to establishing Country R citizenship for AB would be at best fraught and would involve deceit; and that after 90 days remaining in the country they would be in breach of a tourist visa - though I have no evidence as to what in fact the process of ejection might be and whether this could be remedied by an employment visa.
I further note that if I am to make the prohibited steps order effective, I have to restrict the respondent from travelling not only to Country R, but out of this jurisdiction (to which I would add Scotland) altogether. Otherwise, there will be a risk of onward travel.
Yet further, I do see force in the argument of Ms James that her client was honest, and I could trust her. However, I cannot rely on her broad honesty while giving evidence because I am deeply troubled by the emotional block that the respondent has in relation to the engagement of the second applicant. Put shortly, how she will react to this order?
How do I weigh all these different factors? As to the risk of the family or Country R society generally forcing the respondent and AB to stay in Country R against her will, I do not consider this to be of sufficient magnitude to warrant a prohibited steps order. However, the risk that the respondent may be so unhappy with the order that I make that she might decide to stay in Country R with AB to thwart that order, in particular the parental responsibility of the second applicant, is real. Given that there is no remedy available should AB not be returned, I determine the prohibited steps order should remain preventing travel of AB with the respondent out of the jurisdiction, save to Scotland.
It should not however be a long-term order. I take the view that a move by the respondent with AB to Country R would be irrational for the reasons expressed above. I must anticipate that any unhappiness with my order will pass. I must also bear in mind that it is a very significant restriction on her freedom to travel with AB that would be imposed by the prohibited steps order.
I therefore make the order for two and a half years, or until AB starts school whichever is the later. If the respondent wants to travel to Country R after that she should give the applicants sufficient notice, and propose appropriate protective measures (including such things as travelling on her British passport). The applicants can apply for an extension of the order if they consider that necessary at the expiry of that term, or for a fresh order on the receipt of any subsequent request to travel to Country R. The respondent can apply for the order to be lifted if circumstances require that prior to the end of that term. While of course any application will need to be considered on its merits at the time, I would expect the change in circumstances on which the respondent would be relying to be striking and I would expect the applicants to need to produce tangible reasons to think there is an ongoing risk, or that the protective measures can be sensibly improved.
I will consider submissions as to how passports should be held as a consequence of my conclusions on travel to Country R if the parties do not agree this.
I note that in an attempt to make things seem less uneven to AB the applicants have agreed not to travel abroad save to Scotland and City M for the duration of the prohibited steps order. Ms Cooper made clear at the conclusion of her submissions that they wanted to go to City M for 4 days this summer.
No one was able to properly respond to that. I heard no evidence on it. It would be improper for me to rule on it. In general terms there was no application to restrict their travel so I can see the argument that they should be allowed to go but I remark at this stage that it appears to me far from clear that it is in AB’s best interest to go on such a long journey for so short a time, and for them to raise this at the end of submissions in relation to this summer strikes me as insensitive. My initial view is that they should reconsider their plan.
I do record that obviously, there will not be any restrictions on the respondent’s travel without AB.