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Re M and K (Temporary Leave to Remove to Non-convention Country) [2015] EWFC B229

Application by mother to be released from a prohibited steps order preventing her from removing the parties' two children from the jurisdiction so that she could take them to a family wedding in Malaysia. Application granted.

This is a decision of HHJ Carol Atkinson sitting as a Deputy High Court Judge.

The mother applied to be released from a prohibited steps order preventing her from removing the two children (Aged 8 and 6) from the jurisdiction so that she could take them to a family wedding in Malaysia.  The mother was Malaysian and the father British. The father objected to the children going to Malaysia on the basis that he feared the mother would not return.

HHJ Atkinson considered a s7 report from the LB Redbridge which concluded that the risk of non-return was low but not non-existent and as the consequence could be devastating the recommendation was that it would not be in the children's best interests for them to travel to Malaysia.

The children's school had provided a letter refusing permission for the children to be taken out of school for 7 days, but permitting 3 days with the rest being "unauthorised".

The expert, Ms Tan, a solicitor of the High Court in Malaysia, reported that the children would be recognised as British nationals in Malaysia and that their visas would expire after 3 months (although they could be extended). The Malaysian authorities treat parents as having equal rights so the mother had no advantage over the father. Malaysia is not a signatory to the Hague Convention and there is no recognition of orders made in this jurisdiction and no process for summary return. Mirror orders were possible but could only be made when the children were in Malaysia and would take 2-3 weeks and cost around £5,000. An argument that the children are habitually resident in England and Wales and Malaysia has no jurisdiction was likely to be successful leading to a return, but this would take around 6 months (with any appeal taking 6-9 months) and costing £10,000.

The mother had offered a surety of £5,000 to be provided by a friend and neighbour of 15 years.  The mother did not have the funds to offer any more. The father did not have a fighting fund of £10,000 but his family agreed they would find the money if necessary to bring the children back.

HHJ Atkinson applied s1(1) and s1(3) of the Children Act 1989 and considered Re R (A Child) [2013] EWCA Civ 1115, which provides that the court should consider three related elements when considering an application for temporary removal from the jurisdiction to a non-Hague Convention country:

i) The magnitude of the risk of breach of the order if permission is given;

ii) The magnitude of the consequence of breach if it occurs; and

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

The Judge found that the real issue in the case was the risk of the children's welfare of a visit to Malaysia. She said "I am quite satisfied that the risk that this mother will not return is virtually non-existent….on the evidence before me the risk is tiny, minute, miniscule."  She accepted that the mother had been living in England for 15 years and had no desire to live in Malaysia as a single mother. The children would have to attend a Muslim school and would be wrenched from all they know and love. She found that the mother had promoted the children's relationship with their father and that she and the children were well integrated into their community in South East London. She had a job and had nothing to gain from abduction, but everything to lose.  There was no evidence that the mother would not return out of some sort of "revenge" against the father.

The Judge considered that the consequences of retention in Malaysia would be significant as the children's settled home life and education would be disrupted and there would be enforced separation from their father. However, this was unlikely to be permanent and the likelihood was that ultimately the children would be returned.  The £5,000 bond would make the mother even less likely to breach the order and it would provide a start-up find for the father in the event that she did not return.

HHJ Atkinson said she had given the application "careful and anxious consideration" but she was "positively satisfied" that the advantages to the children of visiting Malaysia outweighed the risks to their welfare.  The mother was permitted to travel to Malaysia with the children for 18 days notwithstanding the school's refusal to authorise the additional days. The Judge indicated that she hoped there would be no repercussions as a result of the unauthorised leave.

Summary by Andrea Watts, barrister, 1 King's Bench Walk
_________________________

Case No: MS13P00191
IN THE FAMILY COURT AT EAST LONDON

11, Westferry Circus,
London
EC4 4HD

Date: 26th November 2015

Before :

HER HONOUR JUDGE CAROL ATKINSON
(sitting as a Deputy Judge of the High Court)
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Between :

DS (mother) Applicant

- and - 

GS (father) Respondent

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DS (the father) in person
Ms Breese Laughran (instructed by Sternberg Reed) for GS (the mother)

Hearing dates: 10th, 11th and 23rd November 2015
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JUDGMENT

HER HONOUR JUDGE CAROL ATKINSON :
1. M is a little girl aged 8, almost 9 years, (born 25th January 2007).  She has a sister, K, who is 6 years old (born 11th August 2009).  The girls' mother is DS (the mother) and their father is GS (the father).  The children live with their mother and spend time with their father every other weekend and at holidays.

2. The mother is a Malaysian national.  The father is British.  Both children were born in England and are also British nationals.

3. The mother applies to discharge an order made by DJ Lewis restraining her from leaving the jurisdiction with the children.  In the first place she wishes to go on holiday to Malaysia in February 2016 to attend a family wedding; the children have been invited to be bridesmaids.  However, she is also keen to be free to be able to go to Malaysia with the children when her finances permit in order to spend time with their Malaysian extended family. 

4. The father opposes the mother taking the children to Malaysia.  His case is that if allowed to attend the wedding she will not return.  The result will be, he says, what she has always wished for – a severance of his relationship with his daughters.  He opposes her taking the children anywhere outside of the jurisdiction of England and Wales.

The essential background
5. The parents met in 2004 and married the following year.  The mother was born in Malaysia.  She came to the UK in September 2000.  She was 24 years old.  She came to study.  She has lived here ever since.

6. M was born in 2007 and K in 2009.  The family visited the maternal family in Malaysia on a number of occasions when the parents were still together.  Typically, the mother would go out to Malaysia with the children in advance and the father would follow for as much time as his work would allow.  The last time that the mother visited her family in Malaysia was in 2010.

7. The parents separated in January 2013 and at the same time the mother issued an application for a non molestation order.  The father issued a cross application for contact to the children.  Within the Part II proceedings the mother made certain allegations against the father regarding his behaviour towards her and the children.  He, in return, insisted that she had sought to alienate him from M and K. 

8. On 26th November 2014, DJ Lewis, after two days of evidence, declined to make the most serious findings against the father but did consider that he had anger management problems and would also benefit from help with his parenting in particular in relation to his boundaries and appropriate behaviour around the girls.  That work had to be completed before overnight contact could start.  Nothing replaces a full reading of the Judgment, a transcribed copy of which remains on the file. Neither parent comes out of it well.   

9. Significant for the purposes of this decision is the fact that although DJ Lewis accepted that the father was the more accurate historian and he simply did not believe the mother on certain serious matters, he nevertheless declined to find that the mother was seeking to alienate the father from the children stating that "It is also not [my emphasis] clear to me that the mother is in fact trying to stop contact.  She has always said that she considers contact to be important.  Crucially, after nearly two years of separation and court proceedings, the children have maintained a positive view of their father, they enjoy contact. They do not appear to have been poisoned against him."  In keeping with that assessment of the situation, the Judge also considered the children should live with their mother and spend time with their father as opposed to living with both parents.

10. An order was made in December 2014 for weekly visiting contact increasing to overnight stays, timed to start in March 2015 and only after the father had completed the necessary parenting and anger management work. To the father's credit he did complete that work and as I understand it his contact proceeded in accordance with that schedule and without any interruptions.  So far as I am aware there have been no enforcement applications and no failures on the mother's part to comply with the orders for contact made by the court.

11. At a later hearing in April 2015 DJ Lewis made a prohibited steps order restraining both parents from removing the children from the jurisdiction without the permission of the court and also ordered the lodging of the girls' passports with the father's solicitors.  This followed the mother indicating that she wished to take the children to Malaysia to a wedding in February 2016 and more generally wished to be free to leave the jurisdiction with the children to travel to Malaysia when her finances would permit it.  The father expressed his belief that the children would not be returned.  DJ Lewis transferred the case to a circuit judge.  Before doing so he ordered the preparation of a s.7 report on the issue of temporary removal.

12. Enquiries were made of the FDLJ regarding whether the matter should be transferred to be heard by a Judge of the division.  In the event, the case was listed before me sitting as a Deputy High Court Judge.

13. Prior to the final hearing I have had the matter before me on one other occasion regarding the funding of the expert.  I mention this by way of background because finance has had some bearing upon the decision in this application. 

14. Orders had been made for the filing of expert evidence.  Initially the mother was ordered to fund that expert.  The LAA declined prior authority on the basis that the mother should pay only half of the costs.  The father objected to paying one half of the costs on the basis that he was unable to pay. He was ordered to file evidence of his finances and the matter listed for a hearing.  The matter eventually came before me.  The father had filed no financial information.  I took oral evidence from him and investigated his financial position.  At the conclusion of that exercise, I was of the view that he could afford to pay one half of the costs of the expert and that he had disposable income after payment of his basic outgoings (rent, travel, child support, household bills) of something in the order of £600 pcm.  Just before I was about to give my reasons the father indicated that he would pay.  I delivered an extempore Judgment in any event. 

The s.7 report and evidence from the children's school
15. The s.7 report on this issue was prepared by a social worker from LB Redbridge.   The author of the report, Ms Osundun, is unimpressed with the fact that the trip will require the children to be taken out of school.  On the issue of visiting a non-Hague convention country she states that she considers the risk of non-return to be "low, but not non-existent and therefore cannot be overlooked".  She makes the point, though without seeing any expert evidence, that the consequences of the children being abducted "could be devastating" including "the possibility of the children not seeing their father again".  She concludes as follows.  "..making an order for M and K to travel to Malaysia would not be in the best interests of the children as there is a possible risk of abduction …which would be a potential risk to the welfare of the children."

16. I have a letter from the children's school.  This letter responds to a request for an additional 7 days absence over and above the half term holiday in order to accommodate the wedding.  This wedding is a combined Hindu and Buddhist celebration over two weekends.  The letter refuses the request for 7 days but permits 3 days stating that the head teacher is prevented by law from granting leave during term time save in exceptional circumstances.  It would appear that the head teacher considers these circumstances to be exceptional such that 3 days leave during term time will be granted but no more.

17. Previously, the mother had secured the agreement of the school to allow the children the 3 days authorised leave and the remainder as "unauthorised".

The expert evidence
18. Ms Tan is an advocate and solicitor of the High Court in Malaya.  She does not have as much experience of giving evidence in the courts in this country as some of the regular experts in this field.  However, her undoubted strength was in the fact that she practises in the High Court in Malaysia and was able, therefore, to give me a full description of the practicalities of making an application for the return of a child to the UK from Malaysia, the costs, and the likely approach taken.  Her evidence can be summarised as follows:

i) These children are British nationals and will be recognised as such by the Malaysian authorities.  

ii) There is no such thing as dual nationality in Malaysia.  You are either a Malaysian National or not.  For that reason the children would have to travel to Malaysia on a travel visa which expires after 3 months.  Of course, that can be extended and indeed were the children to be subject to proceedings in Malaysia would be extended.

iii) The Malaysian authorities treat parents as having equal rights.  The mother gains no advantage by virtue of either her gender or nationality.

iv) Malaysia is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1980.  Thus there is no reciprocal arrangement by enforceable Treaty between this country and Malaysia for the automatic return of children to their place of habitual residence for decisions as to welfare to be made.  There is no recognition of orders made in England and Wales regarding children.  There is no process for summary return.

v) Mirror orders are possible but only if the children are in the country at the time.  If father consented and dispensed with service the process would take 2-3 weeks.   

vi) Securing a mirror order would cost the equivalent of around £5,000 but the likelihood is that there would be insufficient time to secure a mirror order on the proposed trip in February 2016, particularly as the first few days of the trip coincides with Chinese New Year – one of the two busiest public holidays in Malaysia.

vii) Although there is no mechanism for summary determination, a preliminary argument that these are British children, habitually resident in England and Wales, over which the Malaysian courts have no jurisdiction is likely to be successful with the result that the children would be sent back to England. 

viii) The proceedings would probably take around 6 months.  An appeal would add a further 6-9 months. 

ix) The cost of the first instance dispute would be equivalent to £10,000.  That is legal costs only.  It does not include the cost of travel to and accommodation in Malaysia.  It would not be necessary for the father to be physically in the country to pursue such a claim.

Position of the parties
19. The mother insists that she has absolutely no intention of not returning to the jurisdiction citing the fact that she is settled here and has been for many years, that her children are British and she wants them to be brought up here and most importantly she wants them to have contact with their father and paternal family. 

20. She concedes that not returning the children to the jurisdiction would have a considerable impact upon them.  She also said that she understood that ultimately the children would be returned and that when they were there would be a real risk that they would be moved to live with their father.

21. The mother argues that the father is a man who has little respect, in truth, for the Malaysian side of the children's heritage and that by denying the children the right to travel there they will be denied, during their minority, the chance to have proper access to that important part of themselves. She argues that whatever my decision regarding the wedding, it will have an impact upon her ability to travel with her children outside of the jurisdiction during their minority.

22. On the morning of the last day of the hearing she attended with a letter of offer from a neighbour who has offered to stand surety in the sum of £5,000 to guarantee her return following the trip in February.  This sum is only available for this trip, however.  The mother's finances do not permit her to offer any greater sum.  Whilst she would be prepared to apply for mirror orders in Malaysia her finances do not permit the making of such an application.

23. The mother has produced two statements from friends of 15 years who speak to the likelihood of her returning to the UK.  One of those witnesses is the friend who has offered the sum of £5,000 to secure her return.  This lady has also guaranteed the mother's tenancy agreement for 24 months.  Should the mother fail to return then as guarantor she would be liable to pay a sum close to £20,000.  That loss may be mitigated but the point is that this friend of 15 years is sufficiently convinced of the mother's wish to remain in this country that she has made that commitment on her behalf.

24. The father's case is that this mother will not return to this country should she be permitted to leave the jurisdiction with the children whether for Malaysia or any other country.  He highlights a number of evidential pointers on which he relies to persuade me that the mother is an abduction risk:

i) The allegations that she made against him in the contact proceedings demonstrating her clear intention to prevent him from having contact;

ii) the problems he says that he has had in maintaining his relationship with the children;

iii) His allegation that when they were married on more than one occasion she sought to persuade him that they should re-locate to Malaysia so that she could see more of her family;

iv) The fact that she misses her family.

25. He states that the consequences of the children remaining in Malaysia would be significant and indeed the mother agrees with that. Further, he relies upon the recommendations of the s.7 reporter and the letter from the school to argue that a trip to Malaysia is not in the interests of these children. 

26. Father rejects the £5,000 surety as being of any benefit.  He was very clear in his evidence that he did not consider for a moment that this sum, even coming from a friend, would persuade the mother to return to this country. 

27. Enforcing return will be a lengthy and expensive process.  He pointed out to me that he did not have a ready fighting fund of £10,000, which I accept.  However, he also told me that he had had extensive discussions with the paternal grandfather about what they would do in the event that the children were not returned and they had agreed that the family together would find that fund.  He said to me that he would "pursue [their return] with every ounce of my body…as would my family.  We would do everything we had to do.  There is no way they would not be returned to me…they mean everything to me."

28. The father's view about the impact of restrictions on the children's travel outside of the UK was that it would have little impact save that perhaps they would not have such a great "knowledge of the world". He concedes that they cannot access their Malaysian heritage fully from here.

The Law
29. The welfare of M and K is my paramount consideration in making my decision regarding this trip to Malaysia (s.1 Children Act 1989).  I am assisted in determining what is in their best interests by the welfare checklist to which I will turn in just a moment.

30. I also bear in mind as always the Article 8 rights of these children and their parents particularly as their right to respect to their family life with their father is said to be under threat through this proposal to travel outside of the jurisdiction.

31. The application of these principles involves the careful balancing of risks against benefits.  I have considered the most significant authorities in this area – Re K (Removal from Jurisdiction: Practice) [1999] 2 FLR 1084, Re M (Removal from Jurisdiction: Adjournment) [2010] EWCA Civ 888 and most recently Re R (A Child) [2013] EWCA Civ 1115

32. From the leading Judgment of Patten LJ in Re R comes the following well known passage:

"The overriding consideration for the Court in deciding whether to allow a parent to take a child to a non-Hague Convention country is whether the making of that order would be in the best interests of the child. Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the Court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail. This will therefore routinely involve the Court in investigating what safeguards can be put in place to minimise the risk of retention and to secure the child's return if that transpires. Those safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by the UK-based parent."

33. Referring back to Re K, Patten LJ reminds us that applications for temporary removal to a non-Convention country will inevitably involve consideration of three related elements:

i) the magnitude of the risk of breach of the order if permission is given;

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

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

"It is necessary for the judge considering such an application to ensure that all three elements are in focus at all times when making the ultimate welfare determination of whether or not to grant leave."

34. It will be convenient if I set out the evidence key to my decision making together with my resolution of disputed facts under the headings of the welfare checklist.

The welfare checklist
35. Wishes and feelings.  These little girls want to go to Malaysia to be bridesmaids.  This will be an opportunity for them to be centre of attention surrounded by their cousins, aunts, uncles and grandparents.  I consider it highly likely that they wish to go and visit their maternal family.  They have a connection with their maternal grandparents who they have seen in the UK quite recently. 

36. However, the children's strong wish to attend the wedding or go to Malaysia cannot be a determinative factor in this case.  At their ages they have no appreciation of the potential consequences of such a trip should it end in a wrongful retention. 

37. Were they to understand those consequences I am sure they would indicate that they would not wish to be separated from their father and paternal family even temporarily.  Indeed I am sure that they would not wish to leave their home in England, their friends or their school.

38. Turning to the children's background and characteristics, these children are of mixed heritage.  They are half English and half Malaysian. 

39. What do they need?  They need to be safe and secure in the home that they have always known in this country with free and frequent contact to their father.  In the context of this application they also need to be able to access both halves of their identity freely.  It will also be of benefit to them to be able to travel outside of England and Wales. 

40. They have easy and regular access to their English culture.  Not so for their Malaysian culture.  They have contact to their maternal grandparents when they visit London but this is by no means frequent.  They can also see their maternal family over a Skype link but that is not the same.  They are limited in their experiences of their Malaysian culture and will continue to be so unless they are able to visit Malaysia and see their extended maternal family.  The longer they are without access to their Malaysian family the less comfortable they will feel in that other setting which is so much a part of their identity.

41. How capable are these parents of meeting their needs?  Firstly, I consider that both of these parents are able to meet the needs of their children for stability and security.  I am also satisfied that this mother is able to meet her children's needs for a positive and meaningful relationship with their father and paternal family.

42. I consider that this mother is capable of assisting the girls' to access and understand their Malaysian and English identities.  She is a Malaysian national but also has British residency.  Having heard her give evidence it is evident to me that she cherishes her identity as a Malaysian but equally she cherishes this country.  She described to me how much she loves living here and I accept that evidence from her.  She appreciates the freedom that women have in this country to work and succeed in addition to being a mother.  She wants that for her girls rather than what she described to me as a more secondary role of the sort that she identifies with being a Malaysian woman in Malaysia. 

43. Whilst I am satisfied that this father is able to meet the needs of his children to understand their English heritage I am concerned that he struggles to value their Malaysian heritage equally highly – partly as a result of his lack of respect for the mother but also through a general lack of respect for her culture.  Let me give some examples.

i) I observed more than a little bitterness in the father for this mother.  He admitted that he did not trust her but in a number of ways during his evidence he was barely able to disguise his dislike of her which was not pleasant to see.  I can understand why the history of these proceedings might have given rise to a lack of trust. However, I am unsure why that would cause him to have such a low opinion of her as a mother, stating to me that the full extent of her capabilities was to "put food on the table and meet [the children's] basic needs". 

ii) During his cross–examination of her he greeted one of her answers as "total rubbish".  The manner in which he dismissed her was unpleasant and caused me to warn him against such comments. 

iii) He quite pointedly refers to her by her maiden name.  She retains her married name.  When asked why, he told me that as they were no longer married he did not see why she should continue to use what was his name.  I wondered to myself how the children might view that as it is their name too. Does she not deserve to share it with them as their mother?

iv) His statement of evidence asserts that the mother has gone to extreme lengths over the last three years to make contact "as difficult as possible" and that "it has only been when the courts intervene to enforce contact that it has taken place at all".  This over states the position.  There have been no enforcement applications and no failures on her part to comply with the orders for contact made by the court.

44. It seems to me that if he does not value her as a person he is unlikely to value her culture and indeed this was supported by his own evidence.  He agreed that a visit to Malaysia was probably the only way in which the children would see many of their extended maternal family but he did not consider missing out on such a trip would be of any real significance to the children.  The first question he put to the expert was a suggestion that as a "white westerner" he would be seen as a "guailo" (once a derogatory term for westerners) and a "cash cow" and if he had to go to Malaysia he would be exploited by the Malaysian people.

45. I have little confidence that the girls' Malaysian heritage will be promoted by the father. 

46. Considering the likely effect of a change in their circumstance, I am of the view that being able to visit their maternal extended family would be of benefit to the girls provided, of course, that they are returned to this country to resume their lives here. 

47. Likelihood of harm.  This is the real issue in this case.  What are the risks to the children's welfare which a visit to Malaysia will entail?  That involves the consideration of the three Re K questions set out above. 

48. Taking the magnitude of the risk of breach first.  How do I assess the risks that this mother will not return to this country with the children?  I have considered the whole of the evidence very carefully and I am quite satisfied that the risk that this mother will not return is virtually non-existent.  It is impossible to assess any situation as being without risk.  There is risk in everything we do. However, on the evidence I have before me the risk is tiny, minute, minescule.  Why do I say that? 

49. Firstly, I accept her evidence that she has lived in this country for 15 years and has no desire to live in Malaysia as a single parent.  I believe her.  Though it is the country of her birth I am reminded by her that she is one of a small Buddhist minority in a Muslim country.  Her children would have to attend Muslim schools where the only language spoken is one that they do not understand.  They would be wrenched from all they know and love and, significantly, in describing to me what that is, she included at the top of the list – their father and paternal family.

50. There is objective support for these assertions. 

i) The first is the fact that she has promoted the girls' relationship with their father; their relationship with him is excellent and she recognises it as such. 

ii) She and the children are well integrated and supported in their community in SE London – to the extent that a neighbour has been prepared to offer a surety of £5,000 to secure her return to the UK and guarantee her tenancy. 

iii) She has secured a job working as a child minder.

iv) She has nothing to gain from abduction and everything to lose.

51. There is absolutely no evidence that suggests she will not return or even be motivated not to do so unless one considers that she is a woman whose desire for some sort of "revenge" against the father would cause her to ride rough-shod over the welfare of her children.  I do not consider that she has so little concern for her children.

52.  The father says that when they were married the mother sometimes tried to pressurise him into getting a job in Malaysia so that they could live closer to her family.  She told me that this suggestion was made on the basis that they would be living as ex-pats in Malaysia.  They would have access to a comfortable income and lifestyle and their children would have been in International schools.  The best of both worlds; but as I have already said a far cry from the realities of life for her in Malaysia as a single mother with no employment.

53. What are the consequences of a breach?  There is no dispute that the consequences of these children being retained in Malaysia would be significant.  They would suffer disruption to their settled home life, to their education and most importantly they would suffer an enforced separation from their father and the paternal family.  

54. On the evidence that I have this is unlikely to be a permanent separation as is often indicated in such cases. The likelihood is that ultimately the children would be returned.  I do not underestimate the impact of even a temporary separation accompanied, as it would be, by the anxiety of being in a different country, separated from their friends, their school and all that is familiar to them whilst their parents battled over their return.  However, it is right that I should weigh in the balance the fact that such separation would, on the expert evidence, be for a finite period and these children would likely be returned.

55. Can a greater level of security be achieved by building in to the arrangements any safeguards?  There is nothing that can be done prior to travel to build in a greater level of security and ensure a swifter return should the children be retained in Malaysia. 

56. The lodging of a £5,000 bond securing her return makes the father feel no more satisfied that this mother will return.  I have to say, however, that I consider this mother even less likely to breach the order having secured £5,000 from a friend in this way.  I do not consider that she would want to repay the kindness of her friends by causing them to forfeit their savings.

57. The real value of that fund, however, is in the start-up finances that it provides to the father.  It would enable him to get the ball rolling in applying for the return of the children whilst the paternal grandfather does whatever is necessary to raise the remaining funds to pursue the action needed to enforce the girls' return.

58. Given the evidence that Malaysia would likely return these British children, the provision of finance, albeit insufficient to cover the entire costs, is probably the best that can be achieved in terms of making arrangements to safeguard return.

Discussion and analysis
59. I have given the issues in this case careful and anxious consideration.  I am comfortable with my assessment that this mother presents a virtually non-existent risk of abduction of these children.  I do not say that from a simple assessment of her in the witness box.  I have looked carefully for objective evidence supporting either contention.  There is no evidence to suggest that this mother would be motivated to remain living in Malaysia.  All of the factors point the other way.

60. I cannot assess the risk as zero, as the father invites because, as I have explained to him there is nothing in life that comes without risk.  Nor indeed is it necessary to assess something as zero risk before it is a risk worth taking.  Crossing the road comes with a risk but it does not stop us all taking that risk on a daily basis. 

61. The consequences of a breach are significant.  The Court of Appeal has been clear in any number of authorities that I should not permit the fact that the risk of abduction is small to diminish the weight to be attached to the consequences of the breach.  Put another way, it is not appropriate to write off the consequences as unlikely to happen because of a low risk of breach.  They are separate considerations and they weigh separately.

62. These adverse consequences weigh in the balance against allowing the trip but they must be weighed for what they are; a temporary or time limited disruption to their day to day lives and their relationship with their father and paternal family.  The consequences are not likely to be permanent separation from their father.

63. The adverse consequences can be marginally reduced by the lodging of the security offered.  Whilst this will not enable the summary return of the children it will, as I have said, provide an essential starter fund for any necessary litigation for this trip only.  I considered whether to take up the mother's offer that she would give up her Malaysian nationality and become a British citizen.  This would take about a year but given the evidence of the expert that she gains no advantage over the father in the legal system by her Malaysian nationality I considered that there was no need for her to do that.  In any event why should she push her Malaysian identity even further away?

64. More significantly for me are the risks of a different kind which flow from the children being deprived of being able to experience their Malaysian heritage not only now but in reality for most, if not all of their minority, for that is what this decision will imply.  I consider that the impact of being deprived of access to this important part of themselves will have a considerable and negative impact upon their welfare.

65. All things considered I confirm that I am "positively satisfied" that the advantages to the children of visiting Malaysia outweigh the risks to their welfare for the reasons that I have set out above.  It follows that I consider the relaxation of the prohibited steps order so as to allow the trip in February to be unmistakably in their best interests.  I have decided that for this trip only mother should lodge a surety of £5,000 which will be made available to the father for his legal costs should she fail to return. 

Length of the trip
66. I need to consider the fact that in taking the children the mother will be exceeding the formal permission given to her by the head teacher. What that means is that 3 days will be authorised and 3 days will be unauthorised. 

67. Education and school are very important and so too is attendance.  I have no evidence to suggest that the children do anything other than attend school properly and fully.  The head teacher has been placed in an impossible position when asked to authorise this trip so publicly.  The head teacher is almost bound to say no – likewise the LA.

68. The school has acknowledged that the trip is exceptional enough to warrant authorising 3 days but no more.  I am at a loss to understand why.  They are 8 and 6.  What possible impact will this have on their education?  What of the educational value of the trip itself?  The opportunity to be in Malaysia during Chinese New Year.  Attending a Buddhist and Hindu ceremony.  The cultural experience will be wonderful.  I am told that if they can only go for 3 additional days it is not worth them going and I can see why.

69. Accordingly, from the perspective of their best interests I am not persuaded that their trip should be reduced by three days.  The order will permit the children to leave the country on the evening of 4th February and return on 22nd February.  Whilst I can do nothing to force the school to authorise these additional days leave I want to make it clear that I do not suggest that leave during term time should be easily permitted.  Nor do I suggest that the school is acting unreasonably in its response.  However, I would sincerely hope that there will be no other repercussions as a result of the mother's decision to take what will be unauthorised leave.

Order
70. I have already delivered my basic decision in this case by email and invited Counsel to draft a High Court Order regarding the travel arrangements.

71. I have been invited during the course of the hearing to consider whether the prohibited steps order should be lifted in its entirety to permit travel going forward.  I have decided to adjourn that issue together with the question of where the children's passports should be kept to a date after the return of the mother and the children to the jurisdiction. 

72. I am of course cognisant of the fact that the decision regarding travel in Feb 2016 will have a bearing upon that wider issue.  However, I am hopeful that once this mother has returned to the UK with the children after their trip, this father may be able to develop some basic trust for her and he may begin to see the situation for what it really is.  If that is so then I want to give him the opportunity to be able to give his consent for his children to be able to travel outside of the jurisdiction with their mother.  If he is able to do that it will be of some importance, in my view, to his children.  If he is not, then I will revisit these issues at that later date.