X-N (A Child), Re
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE McFARLANE
- LORD JUSTICE McCOMBE
- LORD JUSTICE VOS
Areas of Law
- Family Law
- Civil Procedure
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
This case involves a father's appeal against an order allowing his ex-wife to take their child to China. The appeals court found that the lower court's decision process was flawed due to the lack of expert evidence on safeguards, inadequate consideration of the potential risks and consequences, and an imbalanced hearing. The appeal was allowed and the order was set aside, with guidance provided for any potential new application.
J U D G M E N T
LORD JUSTICE McFARLANE : This is an appeal from a decision made by Baker J, on 13 June 2014, which determined an application made by the mother of a 4-year-old child to take her daughter to China for a visit of some 28 or 30 days duration. The judge agreed that that was in the child's interests and he made an order accordingly. It is against that order that the father now seeks to appeal. He comes to this court following grant of permission to appeal at an earlier stage. I granted permission because of concerns raised in the father's grounds of appeal as to the judge's approach when set against the recent guidance given by this court in the case of Re R [2013] EWCA (Civ) 1115 ; a point to which I will return in due course.
Before doing so it is necessary to say something of the background. The mother is of Chinese origin; the father originates from this jurisdiction. The couple met in 2004 and the mother, shortly after that, commenced her settled employment with a company in the area in which she lives, with whom she continues to be employed. The child, a girl J, was born on 24 January 2010 and therefore she is now aged 4¾ years. From time to time, during the period that the couple were together, they travelled either together or at least the mother travelled with J to China to see the maternal family. Soon after the marriage in August 2010 the mother became a UK citizen and I think it is accepted, and certainly we have now seen some legal opinion to this effect, that upon obtaining UK citizenship the mother will have had to relinquish her Chinese citizenship and her Chinese passport.
The visits that J made to China during the happier times when the family were together were undertaken with the father's consent. The parties separated in November 2012 and the mother subsequently entered into a new relationship with her current partner. There have unfortunately been difficulties between the parents following the separation, both as to the ordinary arrangements for the time that J should spend with each of her parents (her primary home being with the mother), but also on the question of what, if any, foreign travel outside England and Wales J might have with her mother and, in particular, whether or not J could go to China for a holiday with the mother.
It is not necessary for me to chronicle precisely the applications and orders that have been made, but the most significant seems to be that of HHJ Marshall, made on 31 October 2013, foll