With Christmas fast approaching it is not just the care arrangements over the Christmas period that need to be considered but it is often a period when parties wish to travel abroad to see family. When both parties have parental responsibility for a child the other parent’s consent must be obtained prior to taking the child out of the jurisdiction of England & Wales. If consent is not obtained and the child is removed, it can be classed as child abduction. In any event, it is always best practice to obtain the other parent’s consent, irrespective of whether they have parental responsibility or not.
In terms of obtaining consent, the first step is to discuss matters and provide details about the holiday with the other parent and obtain their verbal but preferably written consent. If this is not forthcoming, you can consider instructing a solicitor to write to the other parent to set out the legal requirements and provide the other parent with standard information that is often directed by the court e.g. evidence of return flight details, accommodation details and contact details. If the other parent refuses to engage or respond to a solicitors letter, then an application to the court for a specific issue order may then need to be made.
An application for a specific issue order is made for the court to determine whether the child should be allowed to be removed from the jurisdiction of England & Wales or not.
When the court considers an application for permission to remove the child out of the jurisdiction for a holiday and this is to a non-Hague Convention country, the court will consider the following:
1. The magnitude of breach of the order if permission is given;
2. The magnitude of the consequences of breach if it occurs; and
3. The level of security that may be achieved by building in to the arrangements or the available safeguards.
The 1960 Hague Convention is a convention which a number of countries are signatory to. It provides a mechanism for the return of children in the event that they are retained in another country than their place of habitual residence i.e. where they consider home. Signatories to the Hague Convention can be found here.
If the proposed holiday is to a country which is a signatory to the Hague Convention, the court generally has more security that in the event that the child is retained, there is a legal mechanism available for the other parent to ensure the return of the child to their place of habitual residence. However, this is only one element that the court will consider and just because a holiday is to a country which is a signatory to the Hague Convention does not automatically mean that the holiday will be allowed. The Court has to consider whether it is in the child’s best interests generally.
Where an application is made to a non-Hague Convention country, the court has to consider the elements as set out above.
This matter has been recently been considered by the High Court in London when a father applied for permission to remove his son from the jurisdiction for a 6 day holiday to Dubai. Mother opposed the application. Father had previously applied to remove the child but at that time the mother opposed the holiday on the basis that the long-haul flight would be too disruptive for the child and the court agreed. It was recorded within the order that the court indicated that it would not be in the child’s best interest to be taken on a long-haul flight or journey beyond Europe by his father until 2014.
The father applied once again for permission to take the child to Dubai where some of his family resided. The mother opposed the trip on the basis that she was concerned that the child would not be returned from Dubai, a non-Hague Convention country. The mother agreed in her evidence that the father had ample opportunity in the past to abduct the child if he wanted to and the Judge found that the risk of abduction was a minute one. However, the Judge considered that the safeguards which had been offered by the father were insufficient and the view of the expert was that the protective measures that the father could put in place were left too late to be established. The Judge was therefore not satisfied with the safeguards and dismissed the father’s application and therefore the child could not travel.
If you are considering a holiday with your child and fear that the other parent will not agree to such a holiday, it is important to deal with the issue as soon as possible so that the correct steps as set out above can be taken. It is also important to look at the potential safeguards that can be put in place and ensure that there is enough time to do so. In respect of this application to Dubai, potential safeguards could include registering the order with the UK Embassy in Dubai and offering a bond which is money held often by one parent’s solicitor until the child is returned. The Judge in this case however said that the bond offered by Father of £5,000 was not enough.
The lesson to be learnt from this case is that if you wish to remove your child from the country for the purpose of a holiday, you should seek legal advice as soon as possible.
If you are the respondent parent who does not wish your child to be removed from the country, then again, it is important to seek legal advice as soon as possible. If there are concerns that the child may not be returned for example, that parent may need to consider issuing a prohibited steps order to prevent the other parent from removing the child from the jurisdiction.
We have helped many people in these situations both in opposing holidays and seeking permission for a holiday to be taken. Please do not hesitate to give us a call today and arrange a meeting with one of our specialist solicitors (either by telephone, video call or face to face).