If a parent wishes to take his/her children on holiday or move abroad permanently then he/she requires the clear consent of everyone else who also shares parental responsibility for the children. If the consent is not given then it is necessary to apply to the Court to obtain permission. If a parent takes a child abroad without either the other parent’s consent or without permission of the Court then it is classed as a wrongful removal and this is unlawful.
If a parent has a Child Arrangements Order (live with) then they are permitted to take the child outside of England and Wales without the other parent‘s consent but only for a maximum of 28 days. These orders used to be called (Residence Orders).
If a parent takes a child abroad without either the other parent’s consent or without permission of the Court then it is classed as a wrongful removal and this is unlawful.
If a wrongful removal takes place to a country which is a signatory to the 1980 Hague Convention, then an application can be made for the childrens’ summary return back to this country. England and Wales is a signatory to the 1980 Hague Convention as is France.
The first step would be to contact the International Child Abduction and Contact Unit (ICACU) and prepare an application form seeking the return of the children. When completed this is then transmitted to the French Central Authority who will then start the process of issuing Hague Convention proceedings before the French Court.
These proceedings should be completed within 6 weeks (although can take longer) where the French Court will have to decide whether there was a wrongful removal and if so whether any of the limited defences under the 1980 Hague Convention may apply. The 1980 Hague Convention proceedings are not a welfare investigation and if a summary return of the children to England is ordered it will then be a matter for the English Courts to look into welfare matters such as residence and contact. It is always a possibility that the returning parent may, when back, cross apply to relocate with the children lawfully.
In the event of a wrongful removal, it can also be possible to apply to the High Court in England under the Inherent Jurisdiction seeking orders for the return of the children and also orders declaring that they are habitually resident in England and Wales. This approach should however be carefully considered in situations where there is a remedy under the 1980 Hague Convention.
If you are a parent who does not share the parental responsibility of the children, there is little that can be done after the children have gone.
If you are a parent who does not share the parental responsibility of the children, there is little that can be done after the children have gone. This is because lawfully the parent has not done anything wrong by removing the children if there is no one else who shares parental responsibility for them. If this is the case then as soon as the children’s’ habitual residence transfers to France, any proceedings would need to take place before a French Court and it would be French law that applies.
If a parent does not share parental responsibility but has concerns about a child/children being removed to another country, as with a parent who does share parental responsibility, urgent applications to the Court for a Prohibited Steps Order or in some circumstances Location/Passport Orders, can be made to prevent this happening.
In either circumstance, preventative measures are always better than the aftermath of a wrongful removal. If there is a proposed move abroad, mediation is always encouraged to see if an agreement can be reached rather than the Court determining issues.
Finally, a wrongful removal is also a criminal offence which can carry a custodial sentence if convicted.
Any parent wishing to relocate with children to another country should take specialist advice to ensure that they do not fall foul of the law. Equally any parent concerned about children being taken abroad or finding themselves in a position where a relocation has been proposed but does not agree, should also take specialist advice at the earliest opportunity.
Any parent concerned about an abduction should contact a specialist solicitor in this area, ICACU or Reunite.
You may find my blog article ‘Child Abduction – it’s no holiday’ a useful read.
Posted on March 13, 2018