In the case of All ER (D) 114 (Mar) (2016), the Mother was a Malaysian National and the Father was British.
The parties had married in 2005, but subsequently separated in 2013.
There were two children of the marriage, who were both born in England.
It had been agreed that the children would live with the Mother, but spend time with the Father every other weekend.
An Order was in place preventing the Mother from leaving the Country with the children.
The Mother applied to the Court for permission to take the children to Malaysia for a family wedding (where the children were bridesmaids).
The Mother also wanted flexibility to take the children to Malaysia to visit her family in the future.
Malaysia is not a signatory to the Hague Convention and therefore if the Mother did not return with the children, the Courts could not order an automatic return.
Therefore, the Mother offered the sum of £5,000.00 to secure her return to England.
The Father refused to allow the Mother to take the children to Malaysia.
The Court considered the following:
- The risk of the Mother breaching the Order if she was given permission to take the children to Malaysia.
- The consequences of the breach.
- Whether security could be achieved if safeguards were put in place.
- The welfare of the children.
The Court considered the Mother’s evidence.
The Court confirmed that the Mother did not present any risk of abducting the children and remaining in Malaysia.
It was felt that the advantages of allowing the children to go to Malaysia outweighed the potential risks to their welfare.
Therefore, the Court allowed the Mother’s application and for the children to be taken to Malaysia.
The Mother provided the sum of £5,000.00 which was to be used for the Father’s legal costs should she fail to return to England with the children.
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