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What if my ex doesn't return our child from holiday?

As we are coming to the end of the school summer holidays, the issue of a child being returned from a pre-agreed holiday may 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 I am regularly instructed in cases where a child has been ‘wrongfully retained’ in another jurisdiction or has been ‘wrongfully retained’ in England following a holiday 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. 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 agreement, 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 extremely important 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 are concerned that your child may be removed, please contact our specialist, accredited Child Abduction Team, 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.

If you have any questions or need any help with the topic discussed in our blog, please contact Simon Craddock on 01295 661430.

Please treat the contents of our blogs as general guidance only. Please do not take any action based on their contents unless you have sought specific legal advice. Brethertons cannot accept responsibility for any errors or inaccuracies, loss or damage in circumstances where there is no formal retainer between us and we have not given you personal and specific advice relating to a matter for which you have given us full background details.  You must also bear in mind that the contents of our blogs are based on English Law, and because they contain archival material, that material is likely to go out of date. Therefore, it is important to consider the date that the blog was posted. Please also remember that the law may differ in different Jurisdictions.