Re I and L (Children): Father's application to stop children returning to South Africa dismissed

Photo of Cape Town by KYLE CUT MEDIA on Unsplash

A father who was seeing his children on a contact visit in the UK has failed in an attempt to prevent the mother returning the children to their home in South Africa, albeit that the return has been temporarily thwarted by the current travel restrictions.

The essential facts in Re I and L (Children) were, briefly, as follows.

1. The mother and father married in South Africa in 2010.

2. The family oscillated between South Africa and the UK until January 2015, when they finally moved back to South Africa.

3. The children were born in South Africa in 2012 and 2013.

4. The marriage broke down in January 2017, when the father moved out of the family home.

5. The entire family came to the UK in 2017.

6. In the autumn of that year, the mother returned with the children to South Africa, without the father's consent, and without telling him where she was living.

7. The mother remarried in July 2018.

8. The father eventually located the mother and in August 2019 the parties entered into a parenting agreement in South Africa, which provided for the mother to be the primary carer of the children and for the father to have ample contact, including a three-week visit last Christmas.

9. In December, after the children had been delivered into his care, the father filed an application with the court, effectively seeking a prohibited steps order preventing the mother from returning to South Africa with the children.

The application was heard by Mostyn J in the High Court. He decided the matter primarily by reference to the welfare checklist, including making the following findings:

1. Both children clearly indicated that they wished to return to South Africa.

2. The physical, emotional and educational needs of the children were best served by them returning to the place of their habitual residence, namely South Africa.

3. The change of circumstances proposed by the father would be highly detrimental to their welfare.

In the circumstances, Mostyn J found that it was in the best interests of the children that as soon as it is safe to travel, they should be allowed to return to the place of their habitual residence to resume family life there with their mother and stepfather. The father's application was therefore dismissed, and it was ordered that the mother be at liberty to return with the children to South Africa.

You can read the full judgment here.