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  • Writer's pictureJohn Pratley

Can I take my children on a foreign holiday without my ex's permission?

As Covid 19 lockdown arrangements are loosened, and foreign holidays become a real possibility, this question has firmly back onto the agenda, usually as a dispute between separated parents.

One parent may wish to take the children abroad for a holiday, the other parent is anxious about it, often for very understandable reasons.

The basic rule is that removing a child from the jurisdiction of the courts (which means England and Wales, so even technically a holiday to Scotland) requires the consent of both parents or the authority of an order of court. As an exception to the basic rule, a person who has a “live with order” may remove the child for the purposes of a holiday for up to 28 days.

A live with order (previously known as a residence order) is an order made under Children Act 1989, specifying who a child should live with. The standard court order includes a note about foreign holidays, so the position is usually pretty clear.

Otherwise, if you take your child abroad without their other parent’s consent or a court order permitting you to do so, you will be “abducting” the child. That is a criminal offence with serious consequences, including the risk of being arrested whilst you are on holiday and deported back to the UK to face trial.

So an application to the court is the best way forward. The procedure is relatively simple, but it takes several weeks so you need to start the process well in advance. Your application would be for an order under Children Act 1989, using the court form C100. You would have to go through the preliminary process of approaching the mediator for a certificate either to say that mediation has been tried and has failed, or that it is not appropriate.

The approach of courts to foreign holidays is on the whole fairly sympathetic. The fundamental question for the court is whether the holiday is in the child’s best interests. You will need to be ready to set out your holiday arrangements very clearly, including return travel arrangements, and some sort of contact number for use in emergencies. But on the whole a holiday abroad is seen as a good thing, and an opportunity for a child to build their relationship with a parent who they may not be living with the rest of the time.

It can be more contentious where the parent wants to take the children on holiday to a country with which they have a strong connection, perhaps their country of origin where they have family. The other parent is worried that the holiday might be an excuse to take the children to live in that country, and they will not be returned at the end of it.

The court would take such worries seriously, and would look to see that proper arrangements are in place for the children to return at the end of the holiday. They can also ask the parents to offer formal promises, known as “undertakings” which can then be enforced by imprisonment or fine. They can also direct that court orders (known as “Mirror orders”) are obtained in the destination country, to ensure that the children are sent back. But that is probably disproportionate for the purpose of a single foreign trip.

The Hague Convention forms an important part of the background to these discussions. The Hague Convention is an international treaty under which most countries have agreed to send children who have been abducted into their territory back to their country of origin, without question except in very serious cases. Keeping a child beyond the end of an agreed stay or holiday constitutes abduction for that purpose. The vast majority of countries are signatories to the Hague Convention, including almost all popular holiday destinations. So although it would be alarming, mechanisms exist to ensure that children are brought safely home pretty quickly.

But the situation can be more difficult where the country in question is not a signatory to the Hague Convention. In that case the parent would have to make an application in the courts of the country the child had been abducted to, and the law of that country would be applied. This issue came up recently in a case which was reported in the law reports.*

It concerned a British mother and a Jordanian father, who lived with their children for most of the marriage in the United Arab Emirates. By agreement the mother and children came back to the UK permanently, and after a while the mother told the father she wanted a divorce. The father applied to the UK courts for an order permitting him to remove the children to Dubai where he lived, and Jordan, where his family lived, and various other countries, for the purpose of holidays. The mother was concerned that, once the children joined him in either country they would not be returned.

In such cases the judge has to make a decision based on their assessment of what is in the best interests of the children. The “welfare principle” and the “welfare checklist” set out in section 1 Children Act 1989 apply. Section 1 (2A) Children Act introduces a presumption that, unless the contrary is shown, the involvement of both parents in the life of the children will further the children’s welfare. Although it does not specify what form the involvement will take, it obviously tends to support the father’s wish to spend time with the children in his own country.

Previous cases establish that the court has to consider the following points: –

1. An assessment of the risk that the father would breach the court order by not bringing the children back, if he was given permission to take them to the countries in question.

2. An assessment of the seriousness of the consequences of that for the children.

3. The level of security that might be achieved by building in “all available safeguards”, primarily legal arrangements in the country to which the children will be travelling.

The father represented himself in this case, so presumably the judge had opportunity to form an opinion of about him through the way he presented his legal arguments and not just from the way he gave his evidence to the court. He found the father to be “lacking in empathy and insight”, he said he was “selfish, moody, insensitive and at times demanding” and he assessed that there was a significant risk that in the future he might seek to retain the children in Dubai or Jordan.

The judge heard evidence from a lawyer who had practised family law in Dubai, and so had a good understanding of the law there, plus some understanding of the position in Jordan. She explained that, because the mother was not Muslim (she had become Muslim during the marriage, but renounced it on divorce and so became “apostate”) the chances that a court in either country would award her custodianship of the children were “practically zero” and there was really nothing which could be done to put any legal safeguards in place to make sure that the children would be returned to the UK.

So in that particular case the judge did not give the father permission to take the children abroad as he wished, and instead directed that contact should take place in the UK, initially supervised but moving towards a more flexible arrangement. The judge urged the parents to try to be more accommodating of each other and to speak positively of each other with the children. He also encouraged them to try to sort out any future disputes in family mediation.

But the case also illustrates that this can be very difficult area of law, and you should take advice from an expert family lawyer about your own situation before you take any action.

*AA and BB [2021]EWFC 55 Mr richard Harrison QC sitting as a Deputy High Court Judge.


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