Rainscourt Family Law Solicitors

Taking children on holiday after divorce: child abduction

If you and your child’s other parent are unable to agree on your respective holiday plans for your child, a judge may have to decide whether you will be given permission to take your child on holiday to the destination of your choice.

Whether you are likely to be given permission may pivot on whether you pick a country which is a member of the “Hague Convention”.  The list of signatory countries to this convention can be found on the link below.  One of the purposes of the convention is “to secure the prompt return of children wrongfully removed to or retained in any Contracting State”.  The legislation is an effective tool for the return of children retained abroad in these countries, which is defined as child abduction.

The return of children from countries outside of the list of Hague Convention members is more difficult, and therefore, an application for permission to take a child to a non-Hague Convention country will give a judge additional pause for thought, when he or she considers whether it is likely that you will choose to retain the child in the holiday country.

In the recent case of AB*, a mother wished to take her 6 year old son to India for a three week holiday to spend time with her family in that country and applied to the court for permission.  The father was opposed to the application.   The High Court judge referred to the “Re R test” which stated that “applications for temporary removal to a non-Convention country will inevitably involve consideration of three related elements 

a) the magnitude of the risk of breach of the order if permission is given;

b) the magnitude of the consequence of breach if it occurs; and

c) the level of security that may be achieved by building in to the arrangements all of the available safeguards.”

In this particular case, the judge was not satisfied that the benefit to the child of the holiday outweighed the risks and consequences of being retained in India beyond the holiday period and permission to go on holiday to India was not granted.

*AB (A Child: Temporary Leave To Remove From Jurisdiction: Expert Evidence) [2014] EWHC 2758 (Fam) 

 

A STATISTICAL ANALYSIS OF APPLICATIONS MADE IN 2008 UNDER THE HAGUE CONVENTION OF 25 OCTOBER 1980 ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION PART I – GLOBAL REPORT drawn up by Professor Nigel Lowe, Cardiff University Law School

The outcomes of return applications in 2008
Frequency Percentage
Rejection 85 5%
Voluntary return 366 19%
Judicial return by consent order 124 7%
Judicial return not by consent 280 15%
Judicial return consent unknown 104 5%
Judicial refusal 286 15%
Access ordered 41 2%
Access agreed 21 1%
Other agreement 25 1%
Pending 154 8%
Withdrawn 337 18%
Other 63 3%
Different outcomes for different
children 11 1%
More than one outcome 4 <1%
Total 1,901 ≈100%

List of signatories to the “Hague Convention”: http://www.hcch.net/index_en.php?act=conventions.status&cid=24

 

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