Prohibited Steps Order- when breaches don’t always lead to action

Private Law (Child Arrangements Programme (CAP))

03 September 2018

Prohibited Steps Orders are often regarded as a protective means available to a parent who has concerns about another party involved with their child. Whether the issue be the removal of a child from the jurisdiction or simply an order preventing an individual from undertaking a certain act, perhaps naively, Prohibited Steps Orders are used by individuals attempting to ensure compliance.

However, the recent case of AW v KJ [2018] EWCH 2229 (Fam) is a startling reminder that a breach of a prohibited steps order may not always result in the order simply being complied with.

This particular case involved a father of American origin and a mother of Latvian origin. The parties resided within the United Kingdom and had a single child born in October 2015. Their relationship broke down in early 2016. The father was immediately concerned that the mother would leave the country with the child and flee to Russia where the maternal grandparents resided.

The father duly made an application to the court for a Prohibited Steps Order preventing the mother removing the child from the jurisdiction. Accordingly, a Prohibited Steps Order was made on 9th February 2016 on those terms.

Notwithstanding the Prohibited Steps Order, the mother removed the child on 16th February 2016. The mother did indeed take the child to Russia as feared and as specifically prohibited by the order. As a result, the father went on to make an application to have the child returned to the United Kingdom.

A number of attempts were made between the parties to resolve the matter, including failed attempts at mediation, which resulted in the child being two years old by the time the issue of the breach of the Prohibited Steps Order was heard. During this time, the father had seen the child once by virtue of Skype. At the time of the hearing, the father still sought to have the child returned to England.

Mr Justice Keehan oversaw the case and during the course of the hearing, was told that the child was adequately being cared for by the mother in Russia. Counsel for the mother also referred the Judge to the cases of Re J (A Child), Re (Child returned abroad: Convention Rights) UKHL 40 and Re G DHR [2017] EWCA (Civ)1675. The Court agreed that the paramount consideration in such matters remains the child’s welfare and best interests.

Mr Justice Keehan went on to say that:

The father in his evidence and in his presentation of the case has been focused, indeed obsessed, on the rights – his rights of parental responsibility, on E’s rights to live in Russia or her rights to live in this jurisdiction. Whilst I entirely accept that the father loves his daughter, what he does not appear, in my view, to have at the forefront of his mind are the welfare best interests of this little girl.”

As a result, notwithstanding the clear breach of the Prohibited Steps Order, the father’s application to have the child returned to the jurisdiction was refused. However, Mr Justice Keehan did conclude that the matter should be listed in due course to determine the substantive welfare issues.

Whilst an unusual set of circumstances, the case of AW v KJ [2018] EWCH 2229 (Fam) is a reminder that a breach of a prohibited steps order will not always result automatically in the Court ordering compliance. When making such an application, it is imperative on the party applying that they consider not only the issue of compliance but also whether their application, and the order they seek, is truly in the best interests of the child involved.




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