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Parental Responsibility - When does a harmless trip abroad turn into child abduction?

July 17, 2017
Family Law

By Kamal Vasdev, solicitor at stevensdrake

It is fair to say that summer is in full swing. We have had our customary fortnight of hot weather and not much sleep at night, Wimbledon is well under way and many of us are eagerly looking forward to holidaying abroad.

For most people, the process of organising a holiday consists of booking flights, arranging accommodation and packing a suitcase. For most at least.

However, if you are planning to travel outside of this jurisdiction (ie England and Wales) for a harmless getaway with your child(ren) and you are separated from your partner or spouse, there is one further step you must take which could be the difference between two weeks of bliss and spending time in police custody. 

Before even clicking that confirmation button to book your flights, you must ensure that you have obtained the consent (preferably written) of anyone who holds Parental Responsibility (PR) for the child/ren. For reference purposes, biological mothers automatically obtain PR. Biological fathers who were married to the mother at the time the child was born also hold PR as do unmarried fathers who are named on the birth certificate (of children born after 1 December 2003). 

So as not to cause undue stress and anguish to all separated parents, I hasten to add that if you have secured a Child Arrangements Order (formerly a Residence Order) stipulating that the child/ren live with you, you are entitled to take them out the jurisdiction for up to 28 days without the consent of the other parent with PR (although it is always advisable and good practice to notify the non-resident parent).

If no such Child Arrangements Order exists however, and if the non-travelling parent who holds PR refuses to give their consent, you must not proceed with your intentions to travel outside of this jurisdiction as to do so is a criminal offence and tantamount to child abduction. To put this into context, simply taking a child to Scotland for the day without written consent of the non-travelling parent with PR would mean that you are breaking the law.

What happens if I decide to leave the jurisdiction without obtaining written consent?

Quite often when I advise clients of the requirement to obtain written consent before making any travel plans, I am met with responses consisting of the following:

  1. He/she won’t do anything to stop me if I go.
  2. I am only going to Spain, not half way across the world
  3. I have taken the child out of the jurisdiction before and he/she has never said anything.
  4. If he/she tries to stop me once I have gone, I will just say that I did not know that consent was required.

Despite these points, my advice always remains the same. The Courts in this jurisdiction are indiscriminate as to what may or may not happen or what has happened in the past. Ignorance of the law is not a valid defence and simply asserting that one was unaware of the legal requirements will not wash with the Courts.

If the non-travelling parent has genuine concerns that the travelling parent intends to imminently remove a child from this jurisdiction without their consent, then depending on the destination in question and the risk of non-return, they can apply to the Court for orders ranging from a Prohibited Steps Order to a Wardship Order (in the High Court) which, if granted, will mean that the travelling parent will be prohibited from removing the child from England and Wales without the permission of the Court for the duration of the Order. In addition to this, the Court can implement port alerts and confiscate the children’s passports to ensure that they do not leave this jurisdiction. This in turn will mean that an application to the Court will always be required for any proposed holidays in the future (and can remain in place for the remainder of the child’s minority!) This can be an arduous task to look forward to each and every year especially if the children are some way off their 18th birthday.

If the travelling parent successfully removes a child from this jurisdiction without consent, the Court’s powers are wide ranging and depending on whether the country to which the child has been removed is a signatory to the Hague Convention, the travelling parent can be arrested in that country and immediately returned to this jurisdiction. To make matters worse, once back in this jurisdiction, the Courts have the power to impose anything from a hefty fine to a prison sentence or a change of residence in extreme circumstances. When considering this thoroughly, I once again ask; is it worth the risk?

What can I do if I do not receive written consent?

Rather than taking a chance and potentially incurring the Court’s wrath, if it is simply not possible to resolve matters through discussions or via correspondence and mediation proves unsuccessful or is unsuitable (where a relevant exemption is applicable), the correct approach to take is to apply to the Court for permission for temporary removal from the jurisdiction under the Children Act 1989. As is the case in all Children Act applications, the welfare of the child/ren involved is the Court’s paramount consideration. In considering an application of this nature, a Judge will look at numerous factors including but not limited to:

  • The purpose of the proposed trip (ie a holiday, to visit family or to broaden the child/ren’s knowledge and appreciation of a parent’s cultural and religious background)
  • The reasons for refusal of the non-travelling parent (ie whether the refusal is based on trivial issues between the parents or whether there are genuine concerns behind the refusal), 
  • Whether the child/ren will benefit from the holiday (which in most cases they do).
  • The proposed destination.
  • Clearly a Court is more likely to look favourably on a short trip to a country which is signatory to the Hague Convention in comparison to a visit to non-Hague Country where it is far more difficult to instigate the return of the child if subsequent issues arise
  • An assessment of the risk of breach/and magnitude of the consequences of a breach of an undertaking by the travelling parent to return with the child (Re K (Removal from jurisdiction: Practice) [1999]).

It is always advisable to get the process of resolving any travel arrangements started well in advance to avoid the panic of legal intervention days or weeks before the flight is due to take off. At stevensdrake, our specialist family team can advise you on the correct approach to take if consent of the non-travelling parent with PR is not forthcoming. Whilst we always aim to resolve matters in an amicable fashion, we are aware that the need to litigate in the Family Courts can often arise due to urgency or the failure of the non-travelling parent to compromise. As such, we are able to take the necessary steps when required to promptly apply to the Court and advocate on your behalf. 

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