Risky holidays

From the perspective of a parent who no longer trusts their child's other parent, the idea of their child travelling abroad without them is going to…

From the perspective of a parent who no longer trusts their child's other parent, the idea of their child travelling abroad without them is going to create a degree of anxiety. If the other parent is not from the UK originally and wants to take the child to their birth country, there may be even more concern whether there is a risk that the child will be unlawfully retained in that country and what could be done if that happens.

The extent of the fear will depend on the parent's and child's attachment to the UK and the legal relationship between the country in question and the UK:

EU member state

If the other country is an EU member state then significant reassurance can be offered regarding the level of co-operation between that country and the UK.

Hague Convention

Similarly many countries worldwide have chosen to sign the Hague Convention in relation to child abduction which provides a framework for co-operation if a child is abducted, or wrongfully retained.

Non Hague Convention country

If a country is not a signatory to the Hague Convention, then the parent in the UK would need to find out whether there was anything they could do using the country's domestic laws to seek the return (and sometimes location) of the child. There is a risk that the combination of the legal and linguistic barriers and lack of local knowledge could be insurmountable and a court could be forced to conclude that the prospect of enforcing the return of a child taken to that country would be remote.

So will a parent wanting court permission to temporarily remove a child from the UK to holiday in one of these countries automatically have their request refused? Not necessarily - the decision will always ensure the child's welfare is paramount, and weigh up the benefits of the child making the trip against the risks to the child if wrongfully retained in the country they visit.

A recent judgment looks at the complexities of this issue:

B v C (temporary leave to remove to non-Hague Convention country)

This situation arose in the case of B v C (temporary leave to remove to non-Hague Convention country). The case concluded in November 2017 and concerned a nine year old boy. His parents had separated in 2010 and appear to have been in court ever since litigating issues relating to his living arrangements and upbringing.

His parents had met when the father was working abroad in, for confidentiality purposes, an unnamed African country where the mother's family lived (referred to as 'Country X'). They married there in 2002. His mother had become a British national in 2006. Two years before he was born (in England).

Both parents had taken him to Country X when he was eight months old. Subsequently his mother took him there on her own in 2010, 2011 and 2012 and spent eight weeks there (over two trips) in 2013. The mother asked the father's agreement to her relocating with him to country X but his father refused.

An order was made refusing his mother permission to relocate to Country X but granting his mother permission to take him to Country X with her for ten days that Christmas providing she could obtain a mirror order in Country X confirming the terms of the English order i.e. that he was resident in England and Wales. His mother obtained the requisite order from the court of Country X but too late for the intended Christmas holiday.

Following the order he travelled to numerous destinations with his father including Egypt and Tenerife but could not travel abroad with his mother as the specific trip allowed for had not been possible. His mother therefore sought to enforce the order obtain permission for her travelling on holiday to both Hague and non Hague convention countries with him.

The judge relied primarily on the case of Re R (prohibited steps) which stated the court should give permission if it was 'positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail.' It also made reference to the court 'investigating what safeguarding can be put in place to minimise the risk of retention and to secure the child's return'. She also considered the case of Re K from which she extracted three elements:

  1. The magnitude of the risk of breach of the order if permission is given;
  2. The magnitude of the consequence of the breach if it occurs; and
  3. The level of security that may be achieved by building in to the arrangements all of the available safeguards.

The court also considered evidence from the Children and Family Court Advisory and Support Services officer assigned to the case and evidence from a qualified solicitor from Country X.

The judge ultimately concluded that there were significant benefits to him in being allowed to travel abroad with his mother, it would recognise her as an equal parent to his father, equally trusted to look after him and he would experience the benefits offered by exploring his cultural background and spending time with his mother's family.

This conclusion was despite the judge acknowledging that there was no strong evidence that if abducted or wrongfully retained, securing the his return to the UK was in any way guaranteed. The judge did conclude, however, that the risk was virtually non existent. This was on the basis that the judge found the mother to be a credible and truthful witness as well as child focused in respect of his relationship with his father, friendships and education. The judge found that she recognised that his health and education needs were both best met in the UK. In addition, his mother had not breached any court orders to date and there was no evidence to suggest that she would. The judge did require number of conditions to be placed on the order.

Summary

The judgment therefore gives hope to parents wanting to take their children to see friends and relatives in the country they lived in before moving to the UK, even if that country is not a signatory to the Hague Convention. It also has to be acknowledged, however, that it is impossible for the court to eliminate all risk in such travel and that although the court will usually proceed with caution, there will be circumstances where it sees the benefit to the child as outweighing the risk.

Lottie Tyler is an Associate Solicitor in the family law team
Lottie.Tyler@weightmans.com

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