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As Covid-19 travel restrictions have started to ease, many people and families have once again started to consider the possibility of international holidays rather than staycations.
Aside from the current Covid-19 worries and practicalities still surrounding international travel, the issue of a child being returned from a pre-agreed holiday may also be an anxious time for some separated parents.
More often than not, when parents separate, the issue of holiday contact and a summer holiday abroad are agreed amicably and take place without any problem. Sometimes, however this is not the case and we are regularly instructed in cases where a child has been ‘wrongfully retained’ in another jurisdiction or has been ‘wrongfully retained’ in England following a holiday here from another country.
Generally if a parent wishes to take a child abroad, they will need the consent of the other parent or any other person who shares parental responsibility for the child. If consent is not forthcoming or is refused, then it is necessary to make an application to the Court for permission.
If a Child Arrangements Order (live with) is in place then the parent with the Order is able to take the child out of the jurisdiction for up to 28 days. This does not however override any contact arrangements that are also set out within the Child Arrangements Order. To take a child abroad without the necessary consents is a ‘wrongful removal’ and is also a criminal offence.
If the parents (or other persons sharing parental responsibility) have consented to the child travelling abroad but the child has not been returned by the agreed date, a potential wrongful retention has occurred.
There are certain steps that can be taken to seek the return of a child who has been wrongfully retained, either in this country or another country.
The Hague Convention
This is an international treaty which governs the international movement of children. It seeks to provide a remedy where a child is taken abroad or retained abroad by one parent without the consent of the other. At present there are 98 countries who are signatories to the 1980 Hague Convention.
Hague Convention proceedings are summary in nature and do not look at welfare issues in depth such as ‘who is the better parent‘ or ‘who is proposing to care better for the child’. These proceedings instead look at whether the child should be returned from the country he/she has been retained in or taken to. These proceedings are generally dealt with quickly.
If a child has been removed from this country or is retained in a country which is not a signatory to the 1980 Hague Convention, it is also possible to make applications in the High Court such as Wardship proceedings.
It is key to act quickly in circumstances where a child has been removed or retained.
If you are concerned about a child being retained in either the jurisdiction of England or Wales (which is not their usual place of residence) or in another jurisdiction following an agreed holiday, or you are concerned that your child may be removed, please contact:
Simon, Kim and Gemma are specialist, accredited Child Abduction Lawyers who will be more than happy to advise you.
Brethertons LLP have been on ICACU specialist child abduction solicitors panel since 2001 and regularly represent parents and children, within Hague Convention and Non-Convention proceedings and have featured in many of the leading cases within this area of law. Our expertise in this area is recognised in Legal 500 and Chambers and Partners.