Navigating the matter of foreign travel for children whose parents have separated can be stressful, but if you fear that your ex-partner may try to take your child on a trip abroad, or retain them abroad after a visit and refuse to return them, the anxiety is enormous. We have some solutions, including the 007 of family law remedies… so read on.
This week Olivia Currie, Paralegal at Manders Law and future Pupil Barrister at 1 Hare Court, explores this important topic for couples involved in separation, in circumstances where there are real concerns about a possible non-return following a trip, or visit to a parent who lives abroad.
Important safeguards and the 1980 Hague Convention on the Civil Aspects of International Child Abduction
Parents will be relieved to know that in many countries there are international legal mechanisms to effect the return of a child. The 1980 Hague Convention on the Civil Aspects of International Child Abduction provides that signatories must facilitate the return of a child who has been taken there without the permission of the other parent, or of a child who has been taken on a consensual trip, but who has not been returned by an agreed date.
But as the saying goes, prevention is better than cure. So, what can be done to protect against the retention of your child in a non-Hague Convention country before it occurs?
- Firstly, be honest about whether there this is a real concern rather than just frustration and a desire to control contact arrangements unreasonably.
- If there is genuine concern, there a variety of legal safeguards available by way of application to the court.
- The specific and appropriate safeguards will depend on the court’s assessment of what would be most effective on the facts of a particular case.
The UAE, Singapore and Saudi Arabia are just a few examples of countries that are not signatories.
Here, the situation is more difficult. Not only will the non-signatory nation not be obliged to facilitate the return of your child, but you also face the further complication of being subject to the family law system of the non-signatory nation – a law system which may not provide a remedy for the abduction.
Potential applications to the court to reduce and mitigate a real risk – meet 007!
A less well known, and less well used safeguard is the payment of a Bond, either by the removing parent, or by a third party, such as a family member or close friend of the removing parent.
For example, say your ex-partner resides in Dubai, and they wish your child to come on a two-week trip to visit them. You, however, have very real concerns that they may decide to keep your child there, rather than returning them after two weeks as agreed. In this situation and before the trip takes place, the court can order that your ex-partner must pay a certain amount of money to your solicitor as a Bond.
The purpose of this Bond is to provide you with a so-called “fighting fund” – a fund for you to use to pay for legal proceedings to facilitate the return of your child, should you need it. If your ex-partner fails to bring your child home as agreed, the Bond will be released to you to cover your subsequent legal costs in dealing with the case both here and in the foreign jurisdiction.
The amount of any Bond will be determined on a case-by-case basis, depending on what the court thinks is sufficient to safeguard against the risk of retention.
Factors that the court will consider include:
- The level of risk of your child being retained abroad;
- The potential consequences of retention if it was to occur;
- The level of security that may be achieved by building in other available safeguards;
- The potential cost of litigation to effect the child’s return;
- Any potential ancillary costs to such litigation, including flights, accommodation, etc.
As a result, the amount of money ordered to be paid as a Bond can vary widely depending on the circumstances of a case.
For example, in the case of Re M and K , permission was granted to a Malaysian mother to travel with her two children, aged 8 and 6, on the basis that she lodge a surety of £5,000 with the court to be made available to the father for his legal costs should she fail to return. The judge determined that the risk of abduction was ‘virtually non-existent’ and noted the benefits to the children of visiting Malaysia.
In the case of Re L and B , however, a proposed Bond of £50,000 was deemed insufficient when a father sought permission to take his two children to Algeria to visit family members. In this case, the Bond had been offered by the father’s sister. Mr Justice Roberts acknowledged that, whilst the cost of litigation would be proportionately less expensive in Algeria, litigation in the Algerian courts could take years, and in any case £50,000 would be insufficient to cover the mother’s costs of air travel and accommodation whilst in Algeria, should she have to travel there for hearings. The court therefore refused the father’s application to remove the children, notwithstanding the offer of a significant Bond.
The key in assessing any potential safeguard, as stated by Lord Justice Patten in Re R (A Child)  EWCA Civ 1115, at , is that the safeguard ‘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.’
Lord Justice Patten in Re R went on to say that there will usually be a need for expert evidence to establish the effectiveness of any suggested safeguard, including Bonds. In Re L and B, for example, the court heard expert evidence on how litigation in Algeria would be conducted, and what safeguards may, therefore, be most effective. It was this evidence, in part, that led Mr Justice Roberts to conclude that the proposed £50,000 Bond would be ineffective.
Expert evidence, and the cost of such, will be something you’ll need to consider should you want to propose the payment of a Bond.
If you are concerned about your partner retaining your child in another jurisdiction, you can:
- seek a specific issue order or a prohibited steps order.
- when determining such applications, the court’s paramount consideration will always be the child’s welfare.
- the court must also be satisfied that making an order will be better for the child than making no application at all. It is during the process of making this determination that any potential safeguards against retention, such as a Bond, will be considered by the court.
- The court will recognise that, whilst there may be benefits to your child in travelling abroad, these benefits need to be weighed against any potential risks
- The greater the risk, the greater the Bond that may be required
- Remember that your ex-partner, or a close friend or relative, will need to have sufficient means to pay the Bond required
- Even if your ex-partner can’t pay a sufficient Bond, this won’t necessarily be fatal – a combination of other safeguards may be sufficient
- Seek legal advice (even if only in the background) at an early stage
It is far more effective to put safeguards in place now, rather than risk having to conduct litigation in a non-Hague Convention country further down the line.
For an initial FREE consultation on any aspect of family law, call Manders Law on 01245 895 105 or email us here.
Note: this blog is intended to give an overview (rather than comprehensive guidance and advice) on your legal or financial position and is provided for information only. It is not an endorsement of any product or service provider.