For parents who are together, deciding where to go on holiday is a fun exercise that will probably depend on their budget, what best suits the family and whether everyone can cope with a long haul flight.
But for separated parents, the issues are more complicated. One such complication is that in some cases one parent is fearful that the children will be taken abroad on holiday and not returned, and they therefore refuse to give their consent to the holiday going ahead. If a compromise cannot be found, the court then becomes involved to determine the issue.
The intended destination has a huge impact on how the court will approach the case. In particular, is the destination country a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction?
The Significance of the 1980 Hague Convention
The 1980 Hague Convention is a treaty which seeks to protect children from abduction and retention in a foreign country by providing a clear procedure to bring about their prompt return.
If the holiday destination is a signatory to the 1980 Hague Convention then, if a child is not returned at the end of the holiday as agreed, this procedure would kick in and usually the child will be returned to the country where they normally reside. In those circumstances, if the holiday is in the child's best interests permission is usually granted by the court.
However, there are a number of countries who have not signed the Hague Convention. These (in terms of popular holiday destinations) include China, Dubai, India, Indonesia (including Bali), Oman and Thailand.
The Court's Approach to Holidays in non-Hague Countries
In Re R (A Child) the Court of Appeal clearly set out how these cases were to be approached. The overriding consideration for the court is, of course, whether the granting of permission would be in the best interests of the child – and so the advantages of the trip to the child must outweigh the risks to his or her welfare that the visit will entail. These types of applications involve consideration of three 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 available safeguards.
Crucially, if the judge decides to proceed without expert evidence regarding the safeguards that operate in the foreign country, then very clear reasons are required to justify such a course.
If in doubt, the Court must err on the side of caution and refuse to make the order. In practice, this makes the hurdle for a successful application regarding a non-Hague Convention country very high indeed.
Some recent examples
In S v S a father applied for permission to take his five‑year‑old son to Dubai for half term to visit the father's brother and his family.
The mother had initially agreed but shortly before the trip changed her mind saying that she had not realised that Dubai was not a signatory to the Hague Convention.
An expert's report was obtained regarding the position in Dubai if the boy was indeed wrongfully retained but the father had insufficient time to put in place significant protective measures.
The mother was found to be over-anxious and inconsistent, the father credible and the risk of abduction considered minute. But crucially, the expert evidence made clear that the protective measures offered by the father (including undertakings, declarations and paying a bond of £5,000) simply could not be deemed sufficient, through no fault of the father.
Permission was therefore refused.
In X-N (A Child), a mother applied to take her four‑year‑old daughter on holiday to China. Both parents were of Chinese origin and the mother wished to visit her family.
Although initially the mother was given permission, this was overturned on appeal, despite very favourable findings in relation to her trustworthiness and a finding that there was no reliable evidence of any risk of abduction. Although she had obtained letters from a lawyer in China regarding potential safeguards there, no formal expert's report was obtained and this material was not capable of proper exploration.
One recent case where permission was allowed was AB v TB.
A father applied for permission to take his 12‑year‑old son and 10‑year‑old daughter to Jordan during their summer holiday that year and in the future. The father had a large family network in Jordan and the court concluded that it would be in the children's interests for the richness of their Jordanian heritage to be fostered if it could be safely done. There was no doubt that even though the likelihood of abduction was very low, the consequences of this would be extremely serious.
A detailed expert's report was obtained and the father agreed to provide all the safeguards suggested in that report (including undertakings, oaths and a financial bond).
Although it was possible for the children's legal position in Jordan to be protected to a large but not complete extent, the expert noted (and the judge agreed) that in reality the main safeguard for the children is this court's assessment of the credibility of the applicant. Overall the benefits to the children – particularly given the application related to not just one but many years – outweighed the risks to their welfare that would be entailed.
In summary, if a parent wants to travel abroad with a child and the other parent does not consent:
- If it's a non-Hague convention country, the hurdle is high
- It needs to be clearly in the children's best interests (and not simply that they will enjoy a holiday)
- The parent needs sound legal advice in good time before any holiday is planned
- There must be expert evidence clearly setting out the risks, procedures and potential safeguards
- The parent should contact the relevant embassies and authorities for additional assistance
- Offer all possible safeguards.
But of course the best solution - in many respects - is for separated parents to work hard to try to maintain a degree of communication and trust so that such applications are rarely necessary.
If you require further information on anything covered in this briefing please contact Sarah Hutchinson (sarah firstname.lastname@example.org; 020 3375 7492) or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Family page on our website.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, March 2015