It is not uncommon for a parent to wish to travel abroad for the purposes of a holiday or to spend time with extended family members living in another jurisdiction. Unless they have the benefit of an order that the child lives with them, they will need the consent of the other parent or the court. Removing a child without the required consent may result in an offence being committed under the Child Abduction Act 1984.
Whilst in the vast majority of cases arrangements are made without too much difficulty, some cases are more problematic – usually where the foreign jurisdiction is a non-Hague convention country and there is a concern that the child will not return at the end of the agreed period. Two recent cases, A Father v A Mother [2023] EWFC 227 (subnom Re HTD and THE (Children) (Temporary Removal from Jurisdiction) (Malaysia and Hong Kong)) and T v T [2023] EWFC 243, demonstrate the court’s reluctance to permit children to leave the jurisdiction temporarily where the destination is a non-Hague Convention country.
In Re HTD, a mother sought the court’s permission to travel to Hong Kong and Malaysia for a 2-week holiday, jurisdictions to which the mother had family ties. The father objected on the basis that he feared the children would not be returned at the end of the agreed period, for example if the mother decided to settle overseas with her family. Whilst Hong Kong is a signatory to the 1980 Hague Convention, Malaysia is not so obtaining the children’s return would be considerably more difficult.
In T v T, a mother sought the court’s permission to travel to Pakistan for a holiday, where she had family. The father opposed the application. Whilst Pakistan is a signatory to the 1980 Hague Convention, the UK has not yet accepted its accession, and so for the purpose of that case it was treated as a non-Hague country.
Procedure
Typically, a temporary leave to remove application is brought to the court’s attention by the travelling parent who, having discovered that the other parent does not consent to their planned trip, seeks a Specific Issue Order (s 8, Children Act 1989) for the court’s permission to travel. Alternatively, the other parent may seek a Prohibited Steps Order (also s 8, Children Act 1989) for a court order expressly forbidding the travel.
For either application, Form C2 is used for interim applications within active children proceedings. If there are no live court proceedings, Form C100 can be used.
The legal framework
The starting point is s 13 of the Children Act 1989.
Section 13(1) (when read with s 13(4)) provides that:
where a child arrangements order [which regulates when and with whom the child concerned is to live] is in force in respect of a child . . . no person may . . . (b) remove him from the United Kingdom . . . without either the written consent of every person with parental responsibility for the child or leave of the court.’
Section 13(2) carves out an exception where there is a ‘lives with’ order in favour of the travelling parent provided that the trip is for a period of less than one month.
The child’s welfare is the court’s paramount consideration (Re A (Prohibited Steps Order) [2013] EWCA Civ 1115, [2014] 1 FLR 643). Taking into account all of the circumstances of the case, the court will weigh up what is in the child’s best interests and rule accordingly.
The relevant principles to be applied by the court in resolving any dispute as to whether such travel abroad should be permitted were identified by the Court of Appeal in Re A (Prohibited Steps Order) (above) and neatly summarised in Re HTD.
The test
In order to determine whether the trip is in the best interests of the child, the court will consider whether the advantages to the child of her visiting the country in question outweigh the risks to her welfare which the visit will entail. This involves consideration of three related elements:
- ‘the magnitude of the risk of a breach of the order if permission is given’ (in other words, the degree of risk of abduction);
- ‘the magnitude of the consequences of the breach’ (the degree of harm to the children and the father as a result of their abduction);
- ‘the level of security that may be achieved by building into the arrangements all of the available safeguards’ (namely, those safeguards that reduce the risk of abduction and those that increase the likelihood of securing the children’s return in the event of abduction).
The authorities are clear that if there is any doubt, the court should err on the side of caution and refuse to make the order.
Oral evidence
The court will have the benefit of witness statements from each of the parents but it is also common to require oral evidence from both parents. This allows the court to assess the credibility and reliability of the applicant in order that the risk of abduction can be determined.
Safeguards
The court will consider any legal and practical safeguards that have been offered to ensure the children’s safe and prompt return. These may include:
- Undertakings from the travelling parent to return as promised (and not to travel on to other countries);2. Funds to be held in escrow pending their return;
- Lodging travel documents with the British Embassy or solicitors during their stay; and/or
- Providing full travel itineraries, accommodation and return travel details.
The court will also consider the legal processes in place to secure the children’s return in the event of an abduction. Expert evidence from the relevant country will need to be provided which deals with this issue in detail. The expert report should explain the legal processes and protective arrangements available. The report should consider the likely outcome of any court proceedings as well as practical considerations – most importantly delay and cost.
The court’s approach
In Re HTD, Deputy Judge Bowen KC concluded that although the mother’s proposed safeguards would reduce the risks to an extent and the legal processes in both Malaysia and Hong Kong would likely order the children’s eventual return, these processes would be ‘traumatic, costly and potentially protracted’ such that the trip was not in the children’s best interests. The judge further made an order prohibiting travel with the children to Malaysia and Hong Kong for the next 12 months.
Likewise, Mr Justice Peel in T v T found that whilst the risk of abduction by this mother was ‘relatively low’, the degree of harm to the child in the event of their abduction was such that he could not allow the trip. However, the judge went on to comment that a trip to Pakistan may well be appropriate in the future. At that time, the evidence and safeguards will need to be carefully reconsidered by the courts if the father still opposes the trip.
As Re HTD and T v T demonstrate, applications for temporary leave to remove are hard fought and highly fact specific, but the court will err on the side of caution. When applying to travel non a non-Hague Convention country, the applicant faces a high evidential burden to satisfy the courts that it is in the children’s best interests.
Please note this content was originally published in the Family Law Journal. March 2024 edition, best practice section.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, June 2024
