Planning to take your child to a non-Hague Convention country?
divorce is an incredibly stressful process for everyone involved, particularly if you have children. All good Family Solicitors recognise this. If your wider family live abroad, it may be important for you to visit them so that your children can meet relatives and experience first-hand the culture and traditions that are important to you. Any trip abroad may raise concerns with your ex-partner. They may be concerned about child abduction - that you do not intend to return the children to the UK, either in the timescales you have indicated, or ever. They may also be concerned about the safety of the children generally. Recent cases have highlighted the difficulties that a parent may face when hoping to take children to a non-Hague Convention country. If this is something you are considering, and you have not yet discussed your plans with a top family lawyer in London, get in touch with us at OTS Solicitors
The rules about taking your children abroad
If you and your partner are no longer together, and you have children, your divorce law solicitors will have explained that there are clear rules in place that limit where you can take your children without the consent of the other parent. It’s a criminal offence to take a child who is under 16 out of the UK without the permission of all those who have parental responsibility for the child, or the permission of the court. This does mean that if you are the child’s mother, and the father does not have parental responsibility, you won’t need to get his agreement to your travel plans.
If you and the other parent both have parental responsibility, you will need to get the other parent’s agreement to travel. If they will not agree, you will have to apply for a court order which gives you permission to do this. When the court is considering your application, one of the key considerations will be whether the country you plan to visit is a signatory of the Hague Convention, or is a non-Hague Convention country.
The protection of the Hague Convention
The Hague Convention is an international treaty that covers child abduction matters. Countries that have signed the Hague Convention agree to respect the legal arrangements that have been made by another contracting state about the child, and to help secure the return of a child who has been wrongfully taken to or kept in a signatory state. If a court is considering an application to take a child abroad, it will be in your favour if the country you are intending to visit is a signatory of the Hague Convention because of these protections.
How this works in practice
The courts have dealt with several cases recently where a parent has been prevented from taking his or her children to a non-Hague Convention country. Your divorce and Immigration solicitor will be able to advise you on your own position if you wish to travel with your child to a non-Hague Convention country.
In Re: Do and Bo (Temporary Relocation to China) [2017] EWHC 858 (Fam), the mother, a Chinese National with a British passport, and the Australian father, were still married but going through a divorce. The mother applied for permission to take her children to China for 3 weeks, but the father raised concerns that she would not come back. Evidence from an expert in Chinese family law confirmed that the father would have to go to China to bring proceedings for the return of the children, rather than bring proceedings in the UK for the return of the children. Further, an order from the court in England would not be enforceable in China. As China is a non-Hague Convention country, there would be no obligation to return the children under the Hague Convention. Given the ‘moderate risk’ that the mother would not bring the children back to the UK, and the impact this would have on their relationship with their father, the court decided that permission to travel should be refused.
In another interesting case, M (A Child) (Temporary Removal to Kurdistan) [2017] EWHC 3492 (Fam), the court dealt with an application by the mother to travel with her child to the Kurdistan region of Iraq to visit her family. The father objected on the basis that he thought the mother would travel into the Kurdistan region of Iran and not return with the child. He also raised the argument that the trip was simply too dangerous for his child. Neither Iraq nor Iran are signatories to the Hague Convention, but in the end the case seems to have been decided more on the question of safety than on any concern around abduction. The judge simply thought that the dangers inherent in the child travelling to Kurdistan were too great and outweighed the benefit to the child of visiting the mother’s family.
If you are considering a trip with your children to a non-Hague Convention country, it’s vital to obtain accurate legal advice to make sure you stand the best chance of being able to travel with your child. OTS Solicitors are some of the best family solicitors in London, with experience of divorce and Immigration matters. We are highly recommended in the Legal 500. To book an appointment with one of our family law team, call us on 0203 959 9123 today.