A & B, Re

The application before me is made by the mother of the two children who are the subject of these proceedings and is for the court to make a specific issue order enabling her to take the children, A and B, out of the jurisdiction of the court to the Philippines on holiday. The application is opposed by the father of the children, who in turn asks for a prohibited steps preventing the mother from taking the children out of the jurisdiction of England and Wales.

A is aged 4, and B is 2. Both parents have parental responsibility for the children as they were married when the children were born. The parents have been separated for some time, and there are child arrangements orders in place regulating the time that each child lives with each of the parents. That order has been in place since October 2022, varied in May 2023.

There is another child, who is not a child of this relationship: C who is 9, and who lives with the mother.

I will call the parents the mother and the father respectively. No disrespect is intended to either in using such impersonal terms. The mother is aged 29 and the father is 42. They met in 2019 and married in February 2020. A was born in July of that year. The father was already living in the UK, the mother was habitually resident in the Philippines. She arrived in the UK in August 2021, having experienced delays in obtaining a visa.

The marriage did not last for long, after her arrival. In her evidence the mother told me that they were both young, although she would have been 25 or 26 at the time of the marriage and the father older than that. They separated in December 2021, when the father left the home. Putting it as neutrally as possible there was some volatility when they separated, and each made allegations against the other. The mother sought a non- molestation order and an occupation order against the father and orders were made by the court in December 2021, with the court making no findings and neither party making any admissions. The mother has persisted in her contention that she is a victim of domestic abuse notwithstanding that the court has never made any findings against the father.

Since then, there has been scarcely any time during which the parents have not been involved in proceedings against the other. This has been a high level of litigation, for a couple who had very little money. The father has tended to represent himself, although he was represented before me at this hearing, and the mother has had the assistance of legal aid.

The father applied for child arrangements orders in respect of A in January 2022, and in May 2022 he applied for a prohibited steps order to prevent the mother from removing A from the jurisdiction of the court and for an interim child arrangements order. The prohibited steps order was made in June 2022, along with interim orders for the father to spend time with A.

Decree nisi was pronounced in July 2022, and was made absolute in June 2023.

B was born in 2022. It was necessary to direct DNA tests to establish whether the father was in fact B’s father, owing to a challenge from the father about his paternity. Testing confirmed his paternity in September 2022.

In the meantime, the court had listed and heard a contested hearing on the father’s interim contact with B, although no order was made at the hearing (this was prior to the receipt of the DNA test results).

At a final hearing in October 2022, the court made a shared care order in respect of A, providing they were to live with the father from 9.00am each Sunday until 9.00am each Wednesday, and with the mother for the remainder of the week. Interim orders were made for B to spend time with the father. A prohibited steps order was made preventing the mother from removing both children from the jurisdiction of England and Wales until April 2024.

Both parents appealed. At the appeal hearing in April 2023, both parties’ applications for permission to appeal were dismissed.

In the meantime, the financial remedy proceedings had been ongoing, and judgment was given in May 2023. That order was appealed, and in January 2024 judgment was handed down on the appeal, providing that the former family home was to be sold as from April 2024, and for division of the proceeds. The importance of this decision is that the mother had been living in the home with the children, and would now have to leave, and find rented accommodation.

In May 2023, the court made a shared care order in respect of A and B.

There was no respite for this family from litigation, as in November 2023 the mother applied for a specific issue order allowing her to take the children to the Philippines on holiday. Directions were given at a hearing in February 2024, including for the Cafcass safeguarding letter to be filed.

In March 2024, the father applied for a prohibited steps order to prevent the mother from removing the children from England and Wales, and from relocating the children away from the local area. This application was consolidated with the mother’s application in May 2024.

In June 2024, Cafcass filed its safeguarding letter. I shall consider this document specifically later in this judgment.

In July 2024 the applications came before HHJ Bedford for directions. The parties were directed to file statements. The mother was directed to file a skeleton argument addressing the status of the Philippines under the Hague Convention 1996. The court directed that Cafcass was not required to attend the hearing to give evidence. The final hearing was listed.

The final hearing came before me in August. It was necessary to adjourn the hearing as expert evidence as to the law relating to children in the Philippines had not been obtained. The application was listed for a further DRA in October. The father’s applications to prevent the mother moving away from the local area and from their places of education were dismissed.

The DRA in October was adjourned as the expert evidence was not available. At the further DRA in November the final hearing was listed, and the parties ordered to file final statements of evidence.

In December 2024, the sale of the family home was completed, and the parties subsequently received their respective shares. The mother received net funds of approximately £50,000, it is believed. It had been necessary for the father to apply for implementation and enforcement of the order for sale, to enable the sale to go through. The assets of this family have been significantly affected by the impact and cost of the continued litigation between them.

The applications before the court are for orders for either prohibited steps or specific issues under s8 Children Act 1989. Accordingly, the welfare of each of the children is the paramount consideration of the court, and the court must have regard to the welfare checklist in s1 Children Act 1989 when considering where their welfare lies.

There are a number of authorities to which my attention has been drawn in which guidance is given to the approach to be taken in cases where the application is for permission to remove the child, or children concerned to a country which is not a signatory to the Hague Convention on International Child Abduction.

In T v T [2023] EWFC 243 guidance was given to the general approach to be taken in a case where a parent wishes to take a child on holiday to a country where that country is not a signatory to the Hague Convention. As with the Philippines, T v T involved a country which was a signatory to the convention (Pakistan), but the UK had not accepted its accessions. The effect is to treat the country as a non-Hague country.

Peel J held and gave the following guidance, having reviewed the authorities:

The Court’s paramount consideration is the welfare of Z. The leading authority on applications such as these, where permission is sought to remove a child for a short time to a country where the Hague Convention is not operative as between the UK and that country, is Re R (A Child) [2013 EWCA Civ 1115.

At para 23, Patten LJ said this, having reviewed the jurisprudence:

He continued at para 25:

the magnitude of the risk of breach of the order if permission is given.

the magnitude of the consequence of breach if it occurs; and

the level of security that may be achieved by building in to the arrangements all of the available safeguards.

I am grateful to counsel for both parents who have searched to find other relevant authorities in order to assist the court. Neither were able to find authorities relating to the Philippines.

In Re HTD and THE [2023] EWFC 227 an order was made prohibiting travel for 12 months. In that case it was found that the safeguards reduced the risk to an extent and that legal processes in Hong Kong and Malaya would be likely to result in orders eventually for the return of the children, but proceedings would be likely to be costly and protracted. A feature in that case was the behaviour of the mother which was found to be hostile to the father.

In WO v RO and others [2017] EWHC 858, the court refused an application for the children to be taken to China on holiday to be introduced to members of the maternal family. In that case, the expert advised the court that there were no effective safeguards that could be put in place to prevent the children from being retained in China “if the mother so chooses”.

In AM v DF [2018] 1 FLR 481, Baker J (as he then was) stressed that a disputed issue regarding the temporary removal of children to a non-Hague convention country called for careful analysis and rigorous scrutiny.

In K v K [2020] EWFC 96 Mostyn J permitted the mother to take the child to Nigeria for a holiday after concluding that the risk of the mother not returning with the child was “vanishingly small”.

In November 2024, the jointly instructed legal expert reported as to the status of the Philippines as a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, together with other agreed questions regarding the interplay (if any) between the law in the Philippines and English law. Neither party sought to question the expert or to challenge their evidence. The following paragraphs set out the relevant aspects of the law.

While the Philippines is a signatory to the Hague Convention, the UK has not, as yet recognised its accession. This means that the mechanisms available to signatories for return of abducted children under the convention are not available to the left behind parents to seek the recovery of a child or children abducted to or wrongfully retained in the Philippines”.

Parties to proceedings in the Philippines must have legal representation and the timescale and costs for proceedings vary but are estimated to be at least a year in duration.

The final order of an English court may not be directly enforced in the Philippines. A separate action would be required for a foreign judgment to be recognised or enforced. The local court would need to be satisfied that there was an opportunity for a full and fair trial abroad. However, a foreign judgment would not be enforced if it ran counter to laws in the Philippines.

The starting point is that courts do not take notice of foreign judgments and laws. A foreign judgment and its authenticity must be proven as facts.

Perhaps most significantly, no child under the age of 7 years old shall be separated from his/her mother unless the court finds compelling reasons to order otherwise. This presumption is not absolute and may be disregarded if there are compelling reasons to do so (referred to later in this judgment as “the tender years presumption”).

I find, therefore, that if the children were removed from the jurisdiction of England and Wales to the Philippines, or once there, were not returned, there are no guarantees that the father would be able to secure their return. Proceedings would be likely to be long and expensive. The presumption that a child under the age of 7 should not be separated from the mother is a significant feature of the law, and I find that were the father faced with having to apply for the return of the children to his care, given their age, it is not likely that he would succeed. No recommendations are made by the expert as to realistic safeguards that would have a real and tangible effect.

Mother

Father

In accordance with usual procedures, Cafcass was directed to undertake brief discussions with the parents, and report to the court as to the existence of any safeguarding issues. There are two letters, both dated June 2024. In addition to the issues which the letter is required to grapple with, the letter states “the court may wish to consider that [the mother] should be permitted to take the children to the Philippines in the interests of them developing an understanding of their cultural heritage and forging relationships with extended family”.

The letter contains a list of pros and cons of the children being allowed to travel. The letter does not appear to appreciate the impact of Philippines law on the issues in this case. There is no attempt to address the question of risk, and how risk might be managed. The letter does not appear to understand that there is no effective mechanism to ensure the return of the children to this jurisdiction. Instead, as Ms Tawfik points out, the letter simply states that if the children do not return their relationship with the father will be “disrupted”. I agree with her submission that the Cafcass officer has failed to understand the issues arising from the legal system in the Philippines, and in an effort to be helpful has significantly failed to appreciate the issues in this case.

The court should only depart from recommendations in a Cafcass s7 report with good reason, and making clear what those reasons are. However, this is a safeguarding letter and not a formal report. The evidence filed and considered by the author has been limited, and she has not had sight of the expert report filed in November 2024. I do not consider that the recommendation in so far as it relates to this application is of assistance to the court. Cafcass were not directed to report, and the officer was not required to attend the hearing to be questioned.

I heard evidence from both parents. It was clear from all that was said that this has been a high conflict case, and that there is little or no trust between them. There are indications, however, that in more recent times there has been some co-operation between them in their parenting. While the mother went to the Philippines in the summer, for example, the father looked after the children while she was away. They both struck me as intelligent people, who have children that they love and cherish, so they have much in common. They do need to find ways of working together to avoid the litigation of the last 3 years. In the event of dispute in the future they should consider alternative means of dispute resolution such as mediation.

In her written evidence the mother raises issues relating to the parents’ relationship, making assertions of domestic abuse and alleging that the father was refusing to agree to her wishes to remove the children on holiday as an aspect of his attempt to control her. In her oral evidence she chose not to pursue those aspects of her case.

She accepted that following separation there had been a period when she had wished to return to the Philippines, that she had felt homesick and unhappy in this country. She accepted additionally that she had threatened to return with the children to the Philippines.

She said however that she now saw that there were more opportunities for the children in England, that support provided by the state, and in education was much superior to that at home. She said that the only reason for her and the children to go back to in the Philippines was her family.

Her mother and aunt were not able to come to the UK, because they were unwell (although there was no evidence of this and no witness evidence from them), and because of the expense. However, it seems that her travel to the Philippines had been funded by her family.

She said that C is well settled in this country and is established at school and has friends. Their life would be disrupted if they did not return to England. C enjoyed their time in the Philippines in the summer and said that they felt loved by their family.

She has been offered employment– she was able to produce the offer letter to the court in confirmation of this.

She said that when the family home was sold in December she presented to the local authority as homeless and is now in temporary accommodation. She hopes to move back to the area, although her evidence about the property which she hoped to rent was confusing and not supported by any written evidence. It was difficult to understand how she had been entitled to temporary accommodation from the local authority when she had a lump sum of £50,000 from the proceeds of sale, but this is what she said.

She did not accept that she had not taken steps to find alternative accommodation sooner to enable the house to be sold under the court order. She said that she had produced evidence elsewhere, although that was not in these proceedings, and it was not produced to me.

With regard to employment, it appeared that she had not been in employment since separation, so during the whole of the period of the financial remedy proceedings. She denied that she had not been trying to find employment but produced no evidence that she had been applying. She did say at one point that she had been looking at going to university, but clearly had made no application. She now has an offer of employment, subject to checks.

She did not appear to have a substantial support network in England. The children were being looked after by the paternal grandmother on the day of the hearing because the mother had no one else to look after them. She said that she had made friends in a group (from whom she produced a letter of support) and in the church (though, again, no evidence of this).

She said that C had felt more supported in the Philippines when there in the summer but felt better now. C does not see their father, and the mother accepted that she had not encouraged contact between them. She accepted that C had thought that the father was their father for “a long time” and the mother had encouraged this as well. However she accepted that she had not continued to promote this relationship and she had stopped the father from seeing C. She said, “I did not think he was sincere”. She accepted that this would have been confusing for C.

She does not have UK citizenship at the moment, although she does have indefinite leave to remain.

It was clear from her evidence that she has little trust or regard for the father and was hostile towards him. She expressed the wish to stop the court proceedings, but nothing that she said suggested that she had any understanding of her role in the continuation of proceedings. There were also occasions when she accepted making unilateral decisions for the children without the father’s consent – such as moving A to another nursery without consulting the father and informing the father at the beginning of 2024 that she intended to move north, out of the area, with the children.

Similarly, in the summer, when the mother went with C to the Philippines, she went without booking a return flight. She explained that this was because it was necessary to get the funds together to pay for the return. In the event she came back a week later than she had agreed with the father, explaining that there was not a flight. When challenged by Ms Tawfik about this, it appeared that there were other flights available, but that she had chosen not to take them. It is concerning that the arrangements were dealt with in seemingly a chaotic and disorganised way. As a result, she missed A’s first day at school, and presumably, had A gone with her, they would have missed their first day at school.

She also explained that she had sent about £28,000 of the proceeds of sale received by her to relations in the Philippines and to friends to cover money borrowed. There was no clear explanation about this.

Despite this, I found her to be generally truthful, although her evidence suggested that she is a strong personality who expects things to be done in accordance with her wishes. She tended to minimise the importance of the father and his relationships with the children, including C. She did not appear to consider her situation objectively.

In his evidence, the father spoke in a clear measured way. He made clear that in his view there is a clear risk that if allowed to leave the jurisdiction the children might not be returned. He told me (and this was not disputed) that threats had been made that she would take the children and that if she did, he would not see them again. He accepted that these threats were made at the high point of the separation in 2021 but said that they were made frequently (“almost a daily occurrence”).

He said that he had been told that she intended to move out of the area with the children at the beginning of 2024, and that this was presented to him as a decision made unilaterally, for financial reasons. He replied that he did not agree.

He said that he was told about the change to A’s nursery, and that this was not presented as a request.

In the summer when the mother went to the Philippines, he said that he was asked to take the children for three weeks, to which he agreed. He said that it was only while the mother was away that he learned that she had not booked a return flight. Later still he was told that she was coming back later than she had said, as a result of which he had to take further leave from work.

In my judgment there is a clear risk should the mother be permitted to take the children out of the jurisdiction to the Philippines that they will not return. The risk is significant and could not be described as minor. It arises from the following points:

Taking all of the above into account I am satisfied that there is a significant risk that if the children are allowed to leave the jurisdiction on holiday to the Philippines, they will not return.

The consequences for the children’s relationship with the father, should they not return to England, will be significant and catastrophic. There appears to be no effective mechanism which would secure the return of the children to this jurisdiction. The courts in the Philippines will not recognise an order made in the English court. The process for obtaining an order in the Philippines is long and apparently likely to be costly. There is no guarantee of success given that children under 7 generally are expected to live with their mother absent compelling reasons to the contrary. I can take no comfort from the mother’s attitude to the father, in her minimisation of his relationship with the children, and C, and her failure to promote the latter’s relationship with their father. It is likely and I find, that if the children were to be retained in the Philippines the father would have little or no relationship with his children, which would be devastating for them. The children have a good and consistent relationship with their father under the present arrangements.

The mother offers no effective security to support her wishes to travel. She has offered an undertaking to return the children, which will have no effect if she is resident in the Philippines. She proposes her car as possible security (I have no information about its value, and the extent to which it would provide security against legal fees in the Philippines). It is of course for the mother as the applicant to satisfy me as to the effectiveness of the security that she proposes.

I asked her why she had not put forward a bond from the proceeds of the sale held by her. Her response was to the effect that it had not occurred to her, but that she would be prepared to do so. Again, she made no concrete proposals supported by any evidence to suggest that her proposals were realistic and offered any security against either return or the cost of legal fees in the event of a failure to return.

There appears to be no mechanism to secure return through the court in the Philippines with any certainty at all. It is not possible, it would appear, to set up any form of mirror orders before travel takes place. Orders made in the English court are not recognised and are not enforceable in the Philippines.

There are clear welfare benefits for the children in having a relationship with both sides of their respective families. Travelling to the Philippines has the merit of enabling a relationship with the maternal side of their family, alongside meeting their cultural needs. That must be balanced however against the risk that if the children travel to the Philippines they may not return. I have concluded that if they do not return their relationship with their father will be extremely difficult if not impossible to maintain. They have been having consistent and good contact with him. They enjoy their time with him, and it is clearly to their advantage that this continues. For that relationship to end would be devastating for them.

The process of the children being returned to this jurisdiction, if they were to be retained, is uncertain, time consuming and likely to be costly. There are no safeguards available either to reassure the court that the mother will return with the children or that if she does not return, there is certainty that the children will return and that the expense of litigation in the Philippines will be covered.

Balancing all of these factors and holding the welfare of the children as my paramount consideration, I am not persuaded that the mother’s application should be granted. I have heard what she has said, but her links to this jurisdiction seem very slight and recent, and she has made threats to take A in the past. Proceedings have never ended and the hostility between the parents remains. In my judgment the risk is too high at this stage to permit the children to leave the jurisdiction for the Philippines, either directly or indirectly, from another country. For those reasons I refuse the mother’s application for permission to take the children to the Philippines for the purposes of holidays and grant the father’s application for an order which directs as a specific issue/prohibited step that the children may not be removed from the jurisdiction of this court during the duration of this order.

As to duration, the children are both very young. For the order to be in force until each reaches the age of 18 is a very long time, and much may happen in that time. I hope that as the relationship between the parents becomes calmer, they may begin to trust each other again and further litigation will be unnecessary. The existence of an order for such a lengthy period may not help that relationship to flourish.

The father’s fall-back position was for the order to remain in force until B reaches the age of 7, which is the point at which the presumption under the law in the Philippines for a child to live with the mother ends. I do not know what the position will be after that point, in the Philippines, and of course as that is some way in to the future, the law in both jurisdictions may be subject to change. It is a principal of the Children Act 1989 that the court should not make an order unless the welfare of the child requires it. In my judgment the duration of the order should be until 4.00pm on B’s 7th birthday. I hope that it will not be necessary for any application to be made at that stage for the order to be extended, but that possibility is, of course, present.

The father asks that the court should direct that neither party may obtain duplicate or alternative passports for either of the children. That is sensible and I will so direct. That order will last for the same period as the prohibited steps order. The father asks that passports and travel documents should be held by his solicitor to the order of both parties or direction of the court. I agree, and the order should provide for the release of the passports by the court to his solicitors, the order to continue during the currency of the prohibited steps order.

Finally, the father asks the court to consider the making of an order under s91 (14) Children Act 1989, which provides that the court may “order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court”. It is certainly understandable why this is raised by the father: this family has experienced constant litigation of one sort or another since 2021. S91A provides for the circumstances in which such order may be made and extends their remit beyond the exceptional circumstances which had been required prior to the coming in to force of s91A. However, while it is tempting, I am not persuaded that it is necessary to make that order as well as the orders set out above. I have made orders for a lengthy period of time, and further applications should not be necessary. A significant aspect of the litigation has related to the financial remedy proceedings, which would not be caught by an order under s91 (14) which applies to applications under the Children Act, not other legislation. In those circumstances I decline to make such an order.

Finally, I should mention that the preparation of the bundle for this hearing by the mother’s solicitors has been appalling. There is no easily locatable index, with hyperlinks that work. Finding the relevant documents has been almost impossible in those circumstances, and has made my task, and that of the advocates, extremely difficult. I had raised the preparation of the bundle at earlier hearings, but it seems in vain.

Additionally, the start of the hearing was delayed because the mother’s solicitors had failed to lodge a witness bundle. The hearing was not able to start until a bundle was able to be printed in the court office, the solicitors agreeing to bear the copying costs incurred by the court. Again, this was an egregious failure in preparation.