This article was originally published in LexisNexis Family Law and can be found here.
Holidays out of the jurisdiction: a review of case law and practical tips
The opportunity for a child to travel abroad, particularly where it involves them spending time with extended family and being immersed in their cultural heritage, can be a hugely beneficial experience for them. Yet in the context of separated families, such trips can give rise to worries that the parent proposing the trip may intend to (or once there decide to) remain abroad with the child, an outcome which may well have serious consequences for the child’s future. Determining whether a trip should go ahead can therefore be a difficult balancing act. This article will look at the court’s approach in such cases, considering the application of the well-established principles in recent caselaw.
Under s 1 of the Child Abduction Act 1984 (‘CAA 1984‘) a parent commits an offence if they remove their child, aged under 16, from the UK unless they have either ‘appropriate consent’, permission from the court or are acting in compliance with Part II Children Act 1989 (‘CA 1989‘). Under s 13 of the CA 1989, where a Child Arrangements Order (‘CAO’) is in force setting out with whom the child is to live, any person named in the ‘lives with’ order may take the child abroad for up to one month; anyone else requires the written consent of every person with parental responsibility for the child or the court’s permission. Note that when making a CAO the court can adjust this default position, so always check the terms of the specific order. Where no CAO is in place, under s 1(3) of the CAA 1984 consent is needed from the child’s mother, the father if he has parental responsibility, and if relevant any guardian or special guardian of the child and anyone ‘who has custody’ of the child. Applications surrounding children’s foreign holidays may therefore be brought by the parent planning the trip if they are not entitled to take the child abroad without the other parent’s consent, or on an application to prevent a trip proposed by a parent entitled to take the child abroad. Irrespective of how the case comes before the court, the same principles apply.
Under s 1(1) of the CA 1989, when determining any question with respect to the upbringing of a child, the child’s welfare must be the court’s ‘paramount consideration’; the court must promote the child’s best interests. In most of the reported cases concerning holidays abroad, the holiday is opposed on the basis of the alleged risk that the child will be retained abroad, often where the proposed destination is the parent’s home country, or a country where they have close family or other connections. Whilst this enhances the benefit of the proposed trip for the child, it can also amplify concerns around abduction. Where such concerns are raised, the court will consider the prospects of achieving the child’s return to the jurisdiction if they are retained; this will depend, to a considerable extent, on whether the proposed destination is a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which provides for summary return in the event of an unlawful retention, and how the destination country implements its provisions. The extent to which specific safeguards can be put in place to ensure return will also be important.
The leading case is Re A (Prohibited Steps Order) [2013] EWCA Civ 1115, [2014] 1 FLR 643, concerning a non-Hague destination, in which Patten LJ provided a helpful precis of the correct approach:
‘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 . . . there is a need in most cases for the effectiveness of any suggested safeguard to be established by competent and complete expert evidence which deals specifically and in detail with that issue. If in doubt the Court should err on the side of caution and refuse to make the order.’
Patten LJ identified that the court should consider three related elements:
- the magnitude of the risk of breach of the order if permission is given;
- the magnitude of the consequence of breach if it occurs; and
- the level of security that may be achieved through safeguards.
On the facts, the Court of Appeal allowed the father’s appeal against the trial judge’s order allowing the mother to take the child to Kenya, the mother’s country of birth; the judge had focused on the low risk of breach, giving insufficient weight to the seriousness of the consequences which would flow from a breach in circumstances where little was available by way of safeguards: ‘If the highly adverse consequences for the child of a breach had been kept in focus, as they should have been alongside the risk of breach and the available safeguards, the judge would have been bound to conclude that those consequences far outweigh any possible benefits to the child from the holiday and do not justify the making of the order absent security for her return’.
Patten LJ’s judgment in Re A did not explicitly address the benefits of the proposed holiday for the child; by contrast this appears to have been accorded greater consideration in recent decisions. In two recent cases the court has permitted holidays to non-Hague states: in K v K [2020] EWFC 96 the court found there was no real prospect of abduction, and in M (children) (non-Hague Convention state) [2020] EWCA Civ 277 the Court of Appeal upheld a judgment determining that sufficient safeguards were available.
In K v K, the Nigerian mother wished to take the children to visit Nigeria. The father asserted that there was a risk of abduction, and that Nigeria was ‘fundamentally unsafe’. Mostyn J rejected the father’s case on safety, not least as the father had happily travelled there with the family only a year earlier, and described his suggestion that the children may be at risk of Female Genital Mutilation, a practice unknown in the region the mother was from, as a ‘makeweight’. As to the reality that, due to the FCO travel guidance resulting from the Covid-19 pandemic the children would need to travel uninsured, and rely on Nigeria’s ‘rudimentary’ health services, Mostyn J noted that the children and mother were in good health and had relied on the Nigerian health service in the past; this was not a good reason to ‘deprive the children of the very tangible benefits which will accrue from a visit to their homeland’.
Mostyn J considered abduction ‘vanishingly unlikely’, going so far as to make ‘a finding of a future fact’ that the mother would comply with his order. He noted that the mother had informed the father well in advance of the planned trip, whereas ‘if she had been intending to do a runner, she would have kept quiet’; further he was satisfied she understood the seriousness of a contempt of court. Mostyn J went on to perform the ‘counter-intuitive exercise’ of considering the consequences of an event he had found would not happen, recognising that he lacked expert evidence, but taking judicial notice of the fact that Nigerian legal processes move very slowly. Mostyn J also accepted that there were no real safeguards available; the mother could not afford to pay a bond into court. However, given his findings as to the likelihood of abduction he considered these facts to be of little relevance, and granted the mother permission to travel. Notably, Mostyn J emphasised the importance of the children maintaining links to Nigeria, pointing out the benefit the children would derive from ‘being taken to the land in which they were born, the land of which they are dual citizens, the land which reflects their mixed-race heritage’.
In M (Children) (Non-Hague Convention State) (above) the Court of Appeal upheld a decision granting the father permission to take the children on holiday to Dubai, his home state and where he now lived. The mother was a Qatari national living with the children in London. Each parent wished to take the children on holiday to their home country; neither is a signatory to the Hague Convention. The trial judge found that a ‘significant’ risk of retention existed in both cases, in particular the father’s, as he was based in Dubai with limited commitment to the UK, and had previously threatened to remove the children from the mother. However, the judge had also considered ‘the benefits [to the children] of being able to travel to their parents’ home states, visiting their family at home and experiencing their culture’, and considered that it would not be ‘in accordance with their welfare if they are never able to travel and so it is necessary for ways to be found to enable this’. Expert evidence established that consent orders could be lodged in both Dubai and Qatar regarding the arrangements for the children, which once approved would be enforced like a local order. On that basis both parents were granted permission to travel once the relevant orders had been obtained. The mother appealed, making particular reference to the judge’s statement that it was ‘necessary’ for ways to be found to enable travel. Moylan LJ, giving the lead judgment, rejected the appeal; the phrase had to be seen in the context of the judge’s welfare concerns and references to safeguards; the judgment indicated the judge had balanced the risks and concluded the available safeguards were sufficient.
Holidays to Hague destinations are generally perceived as low risk, as, employing the principle of comity, the court will usually assume that should the child be retained abroad, a swift return can be effected. However, concerns are sometimes raised, either as to the effectiveness of the procedure in a particular destination, or the risk that once abroad the parent will take the child on to a non-Hague state; where warranted this can result in permission being declined or additional safeguards required.
In AY v AS and Another (Relocation) [2019] EWHC 3043 (Fam), [2020] 1 FLR 536 the mother, having failed to obtain permission to relocate with the child to Kazakhstan, sought to take the child on holiday there. The father argued that there was a risk of retention, and that whilst Kazakhstan had joined the 1980 Hague Convention in 2017, the judiciary was corrupt and return may not be secured. Mostyn J regarded the making of a ‘vague and largely unparticularised assertion’ of corruption to suggest a Hague state would not comply with its obligations as impermissible; he suggested that the only scenarios in which it may be claimed that a Hague state would not fulfil its obligations would be if the country had fallen into civil collapse, or there was strong evidence that a long-standing member was not complying with its obligations. Nevertheless, he required the parties to execute a written agreement as to arrangements for the child in accordance with Kazakhstani law prior to the holiday.
In SR v MA (Temporary Leave to Remove From the Jurisdiction) [2019] EWHC 435 (Fam), the father produced evidence regarding Brazil’s lack of compliance with its obligations under the Hague Convention, including a 2018 US State Department report, and asked the court to approach the case as if Brazil were a non-Hague state, which Roberts J did. As in the other recent cases explored above, Roberts J considered carefully the ‘enormous’ benefit to the child of spending time with his mother in Brazil (where she lived), holding that this outweighed the limited risk of a wrongful retention, providing that appropriate safeguards – in this case a raft of agreements and recitals to be included in the English order, and a mirror order registered in Brazil – were in place before travel. The father had also raised safety concerns given the high crime rate in parts of Sao Paolo, but the mother’s home was some distance from these areas and she had kept her older child safe, such that the judge did not consider the trip would expose the child to any unacceptable safety risks.
AB v CD and another (No 2) [2019] EWHC 2244 (Fam) concerned the risk of onward travel. The child’s psychological father, who had only recently discovered that he was not the child’s biological father, sought permission to take the child on holiday to France. The mother was concerned that, if permitted to leave the country with the child, he might take him on the UAE, where he was based, and not return him. Cohen J found it difficult to assess the risk that this may happen, particularly as the psychological father was angry and emotional. The consequences of retention would be great, and the application had been made at short notice meaning there had been no real consideration given to the safeguards that could be put in place. Permission was therefore refused.
Finally, we mention two cases raising warnings regarding costs and procedural fairness. In A v R [2020] EWFC 88 the mother was ordered to pay the father’s costs of his successful application to take the child on holiday to a non-Hague Convention state. HHJ Corbett noted that whilst many parents may oppose holidays to non-Hague states, here the mother had failed to engage with the proceedings, and contrary to her case, she had no genuine belief that the father would abduct the child, justifying a costs order. In MGB v GT (Children: Temporary Leave to Remove from Jurisdiction) [2020] EWHC 2968 (Fam), [2021] 1 FLR 1456, an order made at an interim hearing for the children to spend two weeks with their paternal grandparents in Ukraine, where the father lived, was overturned as being both unjust due to serious procedural irregularity and wrong. The trip was first suggested during the interim hearing, which had been listed to consider whether a guardian needed to be appointed for the children given their reluctance to have contact with their father; the mother’s concerns about the risk of abduction and the emotional impact on the children of the proposed trip were given little weight (the judge even remarked that ‘the only way to find out what would happen would be to send them and see how they got on’). Williams J, allowing the appeal, noted that there had been no consideration of the risk of non-return, nor the effect this would have on the children, nor the effect on them of the proposed trip when the circumstances of the children’s relationship with their father meant that such a trip may cause significant distress.
If acting for the parent seeking to take the child abroad, ensure that you emphasise how the trip will benefit the child, particularly where it will connect them to their heritage and wider family. Generally, your client should be advised to act transparently and give the other side plenty of notice of the planned trip, even if the other party’s consent is not technically needed, to avoid giving rise to suspicion that they are planning (in Mostyn J’s words) to ‘do a runner’. Conduct thorough research as to the availability and reliability of safeguards, ensuring that you have expert evidence on their effectiveness, and are informed as to what they will cost and what may be required in terms of the English court order to put them in place. Whilst your client may resist the need for safeguards, unless the other party’s concerns are entirely baseless, an application to travel to a non-Hague state is more likely to succeed where safeguards can be put in place, and resistance to this may provoke suspicion. Think creatively about what assurances could be provided and what steps could be taken to reassure the court and the other party. If the destination is a Hague state then it is possible to use arbitration, and this may be worthwhile particularly if there is a wish to travel sooner than the court may be able to accommodate a hearing; the award will need to be made into a court order and it is sensible to check that the use of the arbitration process will not have any impact on enforcement in the destination state.
If acting for the parent opposing the holiday, you are likely to focus on the risk of non-return, and the enormity of the consequences this would have for the child. There may be other concerns about the proposed destination, such as safety, but if such concerns are to be given weight they will need to be specific, credible, and applicable to the part of the country to which travel is proposed; generalised assertions are unlikely to be relevant, and if the parent has consented to travel to the destination in the past, they will need to show what has changed. Likewise, if it is asserted that a Hague state will not comply with its obligations, real evidence will be needed to demonstrate this. Note that a without notice application to prevent a holiday should only be made in cases of genuine urgency, and where it is ‘literally impossible’ for any notice at all to be given to the other party; in such applications, an exceptionally high duty of candour applies (K v K (above)). The client must also be aware that opposing a holiday application where there are no genuine grounds for doing so could result in a costs order against them.
Ultimately, holidays should be a joyful time for children and parents alike, and where a risk of abduction is alleged, the extent and seriousness of the risk must be balanced against the benefit to the child of being able to travel.
