With the summer holidays fast approaching, many separated parents are considering whether to allow their ex to take their children away on holiday. This is often fraught with difficulties, particularly when the travelling parent has family based overseas whom he or she intends to visit or where there is a complete breakdown of trust between both parents. It is therefore essential that any travel plans are made known with full details provided in advance, including contact details, addresses and flight details so arrangements can be agreed. Only then should consent to children travelling be confirmed in writing and passports handed over.
If there are good reasons not to agree travel plans, applications may be made to court in order to prevent travel. These may include asking the court to make a child a ward of court or, in extreme cases, the police may issue what is known as a “Port Alert” although, with the number of travellers embarking on holidays, at ports or airports, these may not be very effective.
Rarely, even when travel plans are agreed, a parent or other family member may retain a child, under the age of 16, in another country beyond the period for which permission has been given. Not returning home, as arranged and agreed, is classified as child abduction, more particularly wrongful retention. About 40 % of all child abductions are in fact wrongful retentions when children are not returned home as planned.
It is a criminal offence and the police should be notified. Even if the abducting parent has obtained a court order from another country, permitting the child to stay there, that will be irrelevant. The key issue for deciding if a wrongful removal has taken place is to consider where the child is habitually resident. This will depend on all the surrounding circumstances. A mere holiday stay is not sufficient to change where a child usually lives. This is carefully considered in each and every case and decisions will be made depending on the level of integration into a new social and family environment. A move in connection with a parent’s employment, even on a short and temporary basis, or a move to another country on a trial basis can establish a “settled purpose with a settled intention”. This can happen extremely quickly.
It is therefore necessary to take action as soon as you suspect any child will not be returned home to prevent a child settling into a new environment. What happens next will largely depend on whether you know where that child is. If you do, then an application will be made locally under the laws of that country. In England and Wales, legal aid is still available for left behind parents.
The Child Abduction and Contact Unit provide a service for parents left behind and has a range of resources available. Reunite International Child Abduction Centre can provide advice, information and support to parents who fear abduction, including a valuable child abduction prevention guide. Contact us today to discuss how our family solicitors can help you with custody disputes about your child.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.
