“Off on holiday or gone for good?”

Private Law (Child Arrangements Programme (CAP))

04 March 2024

One of the concerns for parents post separation is what happens when the other parent seeks to take their child on a holiday abroad. This concern may only be present in a minority of cases, but nevertheless is often a real issue, particularly where the departing parent has strong ties to the other country. The concern is further heightened where that country is not a signatory to the Hague convention.

A recent case, T v T 2023 EWFC 243, deals with this issue and gives some guidance as to what factors need to be considered. In that case, the parties were natives of Pakistan and the mother proposed to take the child, who was five years old at the time, there for Christmas. Pakistan is a signatory to the Hague Convention, but the United Kingdom has not yet accepted its accession, so that the provisions are not applicable as between the two states.

The starting point in determining all these cases, is that the paramount consideration is the welfare of the child. The leading authority, where permission is sought to remove a child for a short time when the Hague Convention does not apply is, Re R (a child) 2013 EWCA Civ 1115. In that case it was said by Patten LJ at paragraph 23, having reviewed the cases on the matter:

“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. Although, in common with Black LJ in Re M, we do not say that no application of this category can proceed in the absence of expert evidence, we consider that 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. If the judge decides to proceed in the absence of expert evidence, then very clear reasons are required to justify such a course.”

The point was also reiterated that applications for temporary removal will inevitably involve consideration of three related elements:

  1. The magnitude of the risk of breach if permission is given;
  2. The magnitude of the consequence of breach if it occurs; and
  3. The level of security that may be achieved by building into the arrangements all of the available safeguards.

It is necessary that the court consider all three elements at all times when making the ultimate welfare determination of whether or not to grant leave.

With regard to the third factor, it was suggested that in most cases evidence would be required as to what appropriate safeguards should be put in place. For example, the safeguards will include mirror orders or written agreements.

The relevant facts of the present case were these. The parties were married in 2017 in Pakistan and the mother moved to the United Kingdom to live with the father in 2018. The child concerned was born in 2018 and the parties separated in 2021. Post separation there were proceedings under the Children Act, and the court made an order in May 2023 for the child to spend time with the father, progressing to alternate weekends from September 2023. There was no contact post separation until then. The application was for the mother to take the child to Pakistan for Christmas in 2023.

The court in the present application was assisted by a report from an English/Pakistan qualified lawyer, setting out the applicable law and the protective measures that should be put in place. That report made it clear that there were legal routes potentially available to the father in Pakistan if the mother did not return the child to the jurisdiction. However, the court was concerned that the report was silent as to how long it would take to pursue those routes and what it would cost. In other words, the expert did not identify any swift means of enforceability. Applying Section 1 (1) of the Children Act 1989, the court had this to say:

“As always, this is a delicate balancing exercise, and a number of factors interact with each other to form a composite picture. F and Z have had a settled regime of contact since September. Both parents told me that it is working very well, and I commend them for that. It is a testament to their mutual wish to ensure, as far as possible, that their personal differences do not impact negatively on the advantages to Z of a healthy relationship with F. I have no doubt that Z enjoys her time with F and benefits enormously from it.

To be deprived of that relationship would, I am satisfied, be devastating for her, and contrary to her wishes and needs. The gravity for this child of being retained in Pakistan is high indeed. Not only would she be deprived of her loving relationship with her father, but she would also be uprooted from the country where she has lived all her life, where she attends school, where she has some extended family, and where, by all accounts, she is thriving and happy. Should she not be returned voluntarily, as Pakistan and the UK do not have reciprocal Hague Convention arrangements, the process of ensuring her return through the Pakistani courts might well be lengthy and uncertain.”

In the present case the application was dismissed. The guidance is for the court to deal with all cases on the specific facts. That said, in all cases the court has to assess the risk and consequence of a breach of the order, and consider whether expert evidence will be necessary to advise what safeguards can be put in place and how effective they are to mitigate against the departing parent breaching the order. If there is any doubt of abduction the application should be disallowed.

In assessing the risk, the court has to be positively satisfied that the advantages of the holiday to the child outweigh the risk to his welfare if he goes. This risk is not only about the possibility of abduction, but the court adopting a holistic approach, looking at all the factors. Crucial among those is the child not having contact with the remaining parent during that time.

It is advised that any application should be made long before the proposed holiday with proposals for contact in advance of the holiday, and to provide some reassurance, the departing parent should obtain a mirror order in that country also.

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