UK: Mirage Or Remedy?

Increasingly, family lawyers are instructed by parents wishing to take their child abroad or, conversely, the other parent who objects to their child being taken abroad for fear of the child not being returned. Most often a dispute arises in families with international connections where a parent wishes to take their child abroad to a country with which they have links, in most cases their home country, to visit relatives. These are difficult and emotive cases. Not surprisingly, following separation and divorce, trust between the parents is often damaged, communication diminished and the potential for cooperation reduced. Consequently, it is not unusual for the left-behind parent to become anxious and suspicious about whether the other parent's plans to take the child abroad on holiday are in fact plans to abscond abroad permanently without returning.

The situation becomes even more complex in circumstances where a parent wishes to take a child to a country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention). Unsurprisingly, the courts must, and indeed do, take applications for leave to remove to such countries extremely seriously since the remedies available to secure the return of a child are, by comparison, much more limited. In some countries, notably Islamic countries, it may be impossible to secure a child's return. In deciding these cases, therefore, the courts must balance the risks of the child not being returned against the benefit to that child of seeing the world. More specifically, in cases involving children with a foreign parent, the court will consider the importance of the child learning about their overseas heritage and having the opportunity to spend time with their extended family.

'Fundamental to the concept of a mirror order is that the foreign court shall have the right and, more importantly, the obligation to enforce the terms contained in the order.'

The courts' approach

In Re R [2013] the court said (para 23):

As is evident from this passage in Re R, the courts will assume that there will invariably be some risk of abduction, particularly where the parent is wishing to take a child to a non-Hague Convention country. Consequently, the courts' assessment of such cases will inevitably focus on the degree of risk and what safeguards can be put in place.

Mirror orders as a safeguard

Over time, the courts have proved themselves inventive, resourceful and robust in devising protective safeguards to minimise the risk of retention and to secure the child's return in that event. For example, the court may make directions for a financial bond to be paid, a notarised agreement to be made, undertakings to be given or copy air tickets to be provided. In an increasing number of cases however, the courts will also require the parent wishing to take the child abroad to first obtain a mirror order from a court in the foreign jurisdiction of travel that reflects exactly the same terms as the English order being mirrored. Fundamental to the concept of a mirror order is that the foreign court shall have the right and, more importantly, the obligation to enforce the terms contained in the order, in particular, to ensure the prompt return of the child at the end of a defined period of time.

A good example of a case where mirror orders were used successfully is Re T [1998], where the court was asked to look at whether the child, aged six, should have holiday staying contact with the father in Cairo (which the mother strongly resisted, fearing non-return), and, if so, on what terms, and whether 'mirror orders' were necessary to exclude the risk of an unlawful retention. The mother was English and the father Egyptian, living in Cairo. Having heard evidence from experts in Egyptian and Arabic law, the court held that staying contact was in the child's interests to allow her to experience proper exposure to her Egyptian heritage, maintain relations with her extended family in Egypt and extend her knowledge of the Muslim religion. Consequently, the court made an order for there to be staying contact in Egypt, subject to the parties applying for a mirror order in the Cairo court confirming:

• the child's residence in England;
• that the child would be returned to England at the end of any period of contact there; and
• that jurisdiction in relation to the child should be with the Family Division of the English court.

This was in addition to a number of other safeguarding provisions including that the father, paternal grandmother and mother enter into a notarised agreement clarifying that the child would live with the mother in England, the child would leave Egypt after contact in that country and the father would place no obstacle in the way.

It is critical for the court to be sure that there is jurisdiction in the relevant foreign country for mirror orders to be granted, and that it will subsequently be enforced.

Limitations

While a mirror order may be helpful in many cases, it will not be appropriate in all cases and nor should they be considered a one-way ticket to obtain the court's permission for temporary leave to remove. The viability of a mirror order varies substantially from country to country and therefore, it is critical for the court to be sure that there is jurisdiction in the relevant foreign country for mirror orders to be granted, and that it will subsequently be enforced.

In many states there is no such thing as a mirror order or order 'in like' terms. There may be concepts such as 'friendly settlement' arrangements whereby the parents can agree to lodge a consent order in the foreign country that will be enforceable. In Indonesia, for example, a foreign order that fulfils basic conditions of fairness, ie that both parties were heard in England, enables the court to enforce it as it would any other foreign order. Conversely, various decisions of the Supreme Court of India, eg Majoo v Majoo [2011], make it clear that the courts in India will not allow mirror orders to be entered into in child custody matters and that they will always conduct a full plenary review of the child's best interests (which almost invariably equate to a decision that the child, who by the time of the ultimate decision has typically been in India for some years, should remain in India). In Islamic countries, the difficulties are different and much more complex. It may be impossible to enforce an order at all if the order is outside what is permissible under shari'ah law.

Importance of expert evidence

Consequently, the court will normally proceed on the basis that expert evidence is necessary regarding the practices and laws in the foreign jurisdiction and confirming the enforceability of mirror orders in that jurisdiction. In Re R the court said that (para 23):

In Re AB [2014] the applicant mother was refused permission to temporarily remove her child, aged six, from the jurisdiction to India for three weeks to visit relatives on the basis that, if a breach occurred, the expert evidence stated very clearly the enormous challenges the father would face in trying to secure the child's return. This was notwithstanding that the court had assessed the likelihood of the mother breaching court orders as 'low to medium' and recognised the benefit to the child in being able to meet his extended family in India. Crucially, the safeguards offered by the mother were insufficient. In particular, the expert evidence made it clear that it was not possible to obtain a mirror order in India and the English court's order would not be binding there.

In Re P [2000] the English court itself faced jurisdictional difficulties in making a mirror order in England as ordered by the court in the US. Technical issues presented themselves in making an order under s8, Children Act 1989 as the child was habitually resident in the US not England, and was not present in England on that date as required by s3, Family Law Act 1986. Not wishing to frustrate such a beneficial procedure, the court held that as a matter of common sense, comity and public policy, the High Court should have the ability to make the mirror order. Other foreign courts may not however be so eager to stretch the boundaries of their jurisdiction so as to honour mirror orders on invitation by the court in England and Wales.

Timing

In addition to the viability and enforceability of a mirror order in the foreign jurisdiction, a further issue for consideration is the stage at which the mirror order can be obtained. In some jurisdictions it is not possible to obtain a mirror order before travel and therefore their availability may be of little comfort to the left-behind parent. Further, even if a mirror order is put into place, there may also be circumstances in which, once registered, the parent taking the child abroad could then apply to discharge or vary the order once in the foreign jurisdiction. Both of these issues were considered in Re R, where the expert evidence in respect of Kenyan law was that a mirror order from the Kenyan court would have to be obtained once the child was in Kenya and that there could be an application for the discharge or variation by the mother.

The parties' means

Consideration should also be given to the parties' means when considering the practicality of mirror orders. This is not only due to the expense of instructing a foreign lawyer and the legal costs generally associated with putting the order in place, but moreover, the expense of enforcing the mirror order in the foreign jurisdiction should the breach occur. This can often be a lengthy and expensive process and should therefore be explored fully at the outset.

In some jurisdictions it is not possible to obtain a mirror order before travel and therefore their availability may be of little comfort to the left-behind parent.

Risks

A further limitation of mirror orders that is often overlooked is that they do not prevent an onward removal to another jurisdiction. So for example, a parent who has obtained the court's permission to temporarily remove their child from this jurisdiction on the condition that mirror orders are put in place, and who subsequently obtains and registers that mirror order, could then, on arrival in the foreign jurisdiction, abscond with the child to another jurisdiction. This may be particularly easy in countries where border controls are lax or even non-existent. The left-behind parent is then faced with the prospect of trying to secure the child's return in the state where the child is now present and where there is no mirror order in force.

Conclusion

If there is jurisdiction in the relevant foreign country for mirror orders to be granted, and evidence that they will subsequently be enforced, then this will undoubtedly bolster an application for temporary leave to remove. However bear in mind that it is by no means a guarantee that mirror orders will always be available and, in any event, the limitations of these orders must always be fully considered.

When bringing an application on behalf of a parent wishing to take their child abroad to a foreign jurisdiction (and indeed when acting for the parent opposing such an application), it is crucial to give early consideration to obtaining expert evidence, in order to look at the specific laws, procedures, customs and practices concerning international family law of the specific country or countries that the child is to visit or may be taken and establish the viability and enforceability of mirror orders in the foreign country of travel.

Mirror orders should not be considered in isolation but may be part of a useful package of safeguarding measures depending on the circumstances and, in particular, the foreign country of travel. A useful 'menu' of potential safeguards can be found in DS v RS [2009] and includes:

• undertakings to bring a child back on a defined day;
• a requirement for a passport and travel visa to be lodged with the British High Commission in the holiday destination;
• a declaration as to the child's habitual residence; and
• a 'bond' for a sum of money to be held in a secure location and forfeited in the event of a non-return, or, as in Re S and O [2009] (where the parties had insufficient means to provide a bond), an undertaking providing for the parent to forfeit an interest in the family home in the event of a non-return.

Re AB (a child: temporary leave to remove from jurisdiction: expert evidence)

[2014] EWHC 2758 (Fam) DS v RS

[2009] EWHC 1594 (Fam)

Re M (a child) (removal from jurisdiction: expert evidence)

[2010] EWCA Civ 888

Majoo v Majoo

[2011] INSC 515

Re P (a child: mirror orders)

[2000] 1 FLR 435

Re R (a child) (prohibited steps order)

[2013] EWCA Civ 1115

Re S and O (temporary removal from jurisdiction)

[2009] Fam Law 114

Re T (a minor) (contact: non-convention country)

[1998] 3 FCR 574

Previously published in the Family Law Journal April 2015

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.