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RE A (PROHIBITED STEPS ORDER)  The British father and mother (who was born in Kenya) were married in Kenya but moved to England where their child was born. When they separated, the father sought a Residence Order and a Prohibited Steps Order to prevent the mother from removing the child to Kenya. The mother was granted a Residence Order with generous contact provisions in favour of the father.
When the father renewed his application for a Prohibited Steps Order, the mother applied for a s 91(14) order (to bar him from making any more applications to court). In the meantime, she also made several applications to take the child to Kenya for holidays.
The judge accepted that the mother was not in a position to offer a financial deposit against not returning the child and that the father would have no right to apply for a return order from the Kenyan court. However, the judge assessed the risk of the mother not returning the child was not great and granted permission to take the child to Kenya if safeguards could be imposed such as lodging the passports at the High Commission in Nairobi and a notarised agreement that the child's best interests lay in her being habitually resident in the UK.
The father's appeal was allowed. The overriding consideration was the best interests of the child. Where there was some risk of abduction to the detriment of the child, the court had to be satisfied that the benefits of visiting the country outweighed the risks to her welfare. If in doubt, the court should err on the side of caution and refuse to make the order. In this case, the judge had failed to investigate the magnitude of the consequences for the child if the mother failed to return the child. The order permitting the temporary removal of the child was set aside and a Prohibited Steps Order was granted which prevented either parent from removing the child from the jurisdiction of England and Wales without the express agreement of the other parent or the permission of the court.
For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.Back to Law Articles