Now that Christmas is out of the way and the New Year upon us, traditionally this is the time when consideration is made to booking a holiday – often abroad.
Caution however is advised for those parents who are separated or divorced. It does not seem to be common knowledge that permission of all persons with parental responsibility should be sought and granted before a child is taken abroad, as otherwise this would be child abduction.
The mother of the child automatically has parental responsibility, and the father would do so if named on the child’s birth certificate (after 1 December 2003) or otherwise by court order. Parental responsibility could also be granted to a third party (eg a grandparent).
It is wise to obtain the permission in writing in case you are asked for proof at a UK or foreign border. If your surname is different from the child’s it would be prudent to carry evidence such as a divorce or marriage certificate, and also birth/adoption certificate.
If permission is not forthcoming, an application to court will be necessary and all others with parental responsibility given the opportunity to put forward their objections to the child being taken abroad.
If however, the parent wishing to take the child abroad has a residence order, or child arrangements order confirming the child is to reside with him/her, then the law allows the child to be taken abroad for 28 days.
Despite this being the case, and even where the other parent does not have parental responsibility, in the interests of good parenting and communication it is well worth agreeing arrangements in advance and if not agreed then the objecting party would have to make an application to court to try and prevent the holiday and apply for an order for parental responsibility if necessary.
It should also be remembered that if family members, say grandparents wish to take the child abroad on holiday, permission must be obtained from all those with parental responsibility first.
Agreeing arrangements in advance is likely to avoid accusations of child abduction, mistrust, and other related applications to court which otherwise would be rendered unnecessary.
Unless there are serious safeguarding concerns and/or a significant risk that the child will not be returned to this country, there is a good chance that the court would give permission for the child to be taken abroad on holiday.
If however there is a risk on non return, safeguarding measures may b e put in force, such as the payment of a large bond (refunded on the child’s return), or the registration of a mirror order (for the child’s return) in the court of the foreign country concerned, solemn oaths for the child’s return, and/or notarized agreements.
Where there is a significant risk that the child will not be returned the court would consider the magnitude of the risk and consequence of the child’s non return; the level of security that may be achieved by building into the arrangements all of the available safeguards.
In one recent case assurances AB (A Child – Temporary Leave to Remove from Jurisdiction – Expert Evidence) [2014] EWHC 2758 (Fam) although the judge held that the risk of the mother not returning the child from a holiday in India was low to medium, nevertheless the consequence of a breach based on the limited access he would have to his father’s family as a result, and due to the safeguards offered by the mother would not offer any realistic safeguards in India, the application was refused.
Cases are very much taken on their individual merits, with the welfare of the child concerned being paramount. If a child is abducted to a country which is a member of The Hague Convention (an international agreement which facilitates the return of children taken out of their home country by one parent against the other’s wishes) then the opportunity and vehicle arises to make an application for redress. It is of course much more difficult when the child has been taken to a country which is not such a member.
The best way forward is of course consensus and agreement which is clear and unequivocal. In F v F, the father denied he had agreed the children could be removed by the mother permanently to live in London in summer 2014 after what he stated was meant to be a short trip, rather than return to live in Budapest even though he had paid for a property in London to house them. In the event the judge ruled in favour of the father and ordered the children return to Budapest. Remarkably this disagreement resulted in legal costs of £200,000, and no doubt a greater cost in human terms regarding the impact of the children and no doubt the mother, and father.
For further details and advice on taking your child abroad contact Anita or another member of the Ringrose Law Family Team across Lincolnshire and Newark.