Removal of Children to Outside the Jurisdiction – Part 1

We live in a world which is becoming smaller all of the time. International travel is easier, cheaper and more accessible than it has ever been. Our economy is driven by seeking to attract and to recruit migrants from all over the world. Naturally, human relationships will develop, leading to children in some cases.  Statistically, some of those children will then be in the middle of disputes between their parents, observes Nazmun Ismail.

The parents will seek the assistance of lawyers whether to move abroad permanently, but also on a temporary basis. The risk being that if a parent takes a child abroad, even for a short holiday, they may not return and may not bring the child back to our jurisdiction.

The complexities of what should happen before the proposed travel and as to what should happen once a breach has already occurred is the subject of many and varied reported cases. Immigration law and regulations make the issues further complex.

This very short article seeks to identify the key points but is not a complete advice or guide.

We all know that where a parent has the benefit of a Child Arrangements Order (to live with) then that parent can take that child abroad for the purposes of a holiday without the consent of the other parent. This is for a period of up to one month. If there is no CAO then the parent cannot take the child abroad without the consent of everyone who has Parental Responsibility. See s13 Children Act 1989.  

In Re R (A Child) [2013] EWCA Civ 1115 the Court considered removal from the Jurisdiction and considered the magnitude of risk and the magnitude of the consequences of breach. There is then consideration of all of the available safeguards.

This is an essential case in your repertoire when dealing with removal issues.

In Re A (Prohibited Steps Order) [2014] EWCA Civ the Court of Appeal explained that,

The overriding consideration for the court in deciding whether to allow a parent to take a child to a non-Hague Convention country is whether the making of that order would be in the best interests of the child. Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail. This will therefore routinely involve the court in investigating what safeguards can be put in place to minimise the risk of retention and to secure the child’s return if that transpires. Those safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by the UK-based parent.

We know that the Chinese economy had seen a massive boost in the last decade or so. Many successful Chinese people come to live, work and study in the UK. In Re DO and BO [2017] EWHC 858. The mother had sought to take the children aged 6 and 8 on holiday to China for 21 days. The Court decided that it would not be in the children’s best interests to travel to China at this stage. It was noted that China was not a signatory to the Hague Convention and there was no bilateral agreement with the UK.

In a very recent case, the Court of Appeal sought to grapple with the complexities arising from immigration and ‘stranding’ by one spouse so as to prevent the other spouse returning to the UK. The Court in Re A [2019] EWCA Civ 74 explained both sides’ positions. The father’s case was that the children had been responding to ill-treatment by the mother having abandoned them in Pakistan. The mother’s case was that the children had been influenced by the father and his family which then led to her being stranded in Pakistan. Issues in respect of passports and Indefinite Leave to Remain are referred to within the Court’s Judgment. The complexities of a ‘simple’ trip to Pakistan so began to unfold.

In Part 2 of this Article, I shall deal with issues in respect of immigration, allocation of cases to the correct level of judiciary and matters to look out for cases with an international element.   Don’t forget to sign up to our Family Team Updater newsletter by clicking below and subscribing.

Central Chambers has a family team with experience in representing applicants and respondents in complex multi-jurisdictional cases.

If you would like to instruct Nazmun Ismail or another member of the family team, please do not hesitate in contacting the family clerks by clicking here or by calling on 0161 236 1133.