Summer is obviously the time when people make time to relax, plan holidays and visit places. However, summer time is also a time when parents need to be very vigilant about the safety of their children.
Perhaps unsurprisingly, summer is a peak season for child abductions. People often envisage a child abduction situation where a parent returns home and the child is missing but commonly with this summer period, a child may visit another parent who lives overseas and at the end of the holiday the child is simply not returned. This is called unlawful retention.
Over July and August, there will be many children going on holiday overseas or actually arriving into England and Wales from another country. In some cases, a parent takes the law into their own hands and decides that it is better for the child that they are not returned home to the other parent at the end of the holiday. A potential criminal offence could be committed and also there may be civil remedies to ensure that the child is returned home.
A number of countries are signatories to the 1980 Hague Convention. This is a set of international rules which govern child abduction situations and attempt to provide a speedy resolution to return a child to his or her place of habitual residence. The home court therefore can look at these welfare issues and determine what is in the best interest of the child.
Other countries are not signatories to the 1980 Hague Convention, to include some Islamic countries which use Sharia Law. It can often be impossible for a mother to have a child returned when taken by the father to such a country or retained there.
Like anything in life, it is a question of assessing the risk and what is the likelihood of an abduction or unlawful retention situation. Of course, no one has the benefit of hindsight but where there is an international element and, a risk, there are certain safety measures that could be considered.
Such safety measures, to hopefully avoid child abduction or an unlawful retention situation, could be as simply as agreeing basics to include:
• Where the child is habitually resident i.e. the home country;
• To agree the framework for the residence (custody) and contact (access) arrangements;
• To specifically agree the purpose of the holiday, the flight itinerary, airlines, accommodation details and so on;
• Where appropriate, to obtain a “mirror order” in the other country to protect and have some potentially immediate enforcement measures should the child not be returned and local legal advice in that country is always needed;
• There can also be separate agreements to include what passport the child is to travel on and who is to hold the passports or travel documents; and
• In certain situations to actually record all of this by way of a court order.
Many children will travel on holiday this summer and many children will safely return home at the end. There will always be occasions where separated parents live in different countries and there will be holidays. From time to time, we see cases, particularly over the summer where a parent decides not to return a child at the end of the holiday and it is much better, where there is an element of risk, to air all of this in advance, to agree the arrangement and consider your legal position. Prevention is better than cure.
James Maguire & Co is a specialist firm of Family Law and Divorce Law solicitors based in Wilmslow, Cheshire. We offer legal advice to parties going through a divorce including the financial issues which flow from this and children matters including child maintenance.
We can also advise on Schedule1 Children Act 1989 applications.
We advise clients in the Wilmslow area and also to the surrounding areas of Alderley Edge, Bramhall, Hale, Altrincham, Manchester and the North West. We are also able to act for clients nationally and internationally subject to the jurisdiction of England and Wales. For advice please contact James Maguire by telephone +44 (0) 1625 529456 or by email email@example.com