Many parents may be unaware that they are not necessarily entitled to take their children out of the country without the other parent’s consent. In fact in England and Wales, without a court order, permission of all parents with parental responsibility is required.
In England and Wales, a parent that has a court Order (namely a Child Arrangements Order providing that a child lives with him/her) is legally able to take that child out of the country for up to a month without requiring the other parent’s permission.
Even in such cases, it may be good practice to inform the other parent of a planned trip for example if the trip will impact on the time the child spends with the other parent.
Without such an Order or where there is an Order in place but a parent seeks to take the child out of the country for longer than a month, the consent of all individuals with parental responsibility for the child is required.
In such cases, a parent who does not obtain consent is effectively committing the criminal offence of Child Abduction.
The Child Abduction Act 1984 makes it a criminal offence for anyone connected with a child under the age of 16 to take or send a child out of the UK without the appropriate consent.
Apart from criminal proceedings, a parent may find themselves subject to family court proceedings for the return of the child under the Hague Convention 1980.
This is a multilateral treaty which seeks to protect children from the wrongful effects of removal and retention and provides a procedure for their prompt return. An application for the return of the child should be made in the country to which the child has been taken.
If the child has been taken to a country that is not a signatory to the Hague Convention 1980, family court proceedings may be issued in England and Wales for the return of the child under the High Court’s inherent jurisdiction. Proceedings for the child’s return may also be issued in the country to which the child has been taken.
Certain countries who are not signatory to the Hague Convention, such as Pakistan have protocols in place. The UK Pakistan protocol for example is a judicial understanding which aims to return an abducted child to the country the child normally lives.
Avoiding the pitfalls
There are a myriad of circumstances in which parental child abduction occurs. It is not necessarily the glaringly obvious scenario where a parent has intended and planned to abduct a child.
Some parents unwittingly fall into the parental child abduction trap for example by taking a child on holiday without the other parent’s consent. Some parents flee abusive relationships or may have relocated to another country and sadly the relationship has ended and the parent wishes to return with the child to their previous country of residence.
There are also cases where a parent has consented to a child being taken on holiday for a fixed period and the other parent does not return the child once the period has elapsed. Under the Hague Convention 1980, this would amount to an unlawful retention of the child.
If you are a parent seeking to take your child out of the country, when in doubt it is prudent to obtain legal advice. If parental consent is required because the other parent has parental responsibility, we can liaise with the other parent. In some circumstances, mediation may be appropriate.
If the other parent is withholding consent, a court application can be made for a Specific Issue Order to enable you to legally take the child out of the country.
Alternatively, if you are a parent opposed to your child’s removal or are concerned that the other parent may take your child abroad, we can make an urgent court application for a Prohibited Steps Order to prevent your child being taken out of the country.
If you are a parent whose child has been abducted or you have been served with proceedings under the Hague Convention 1980, it is essential you obtain urgent specialist legal advice.