There has recently been a case where the Court granted the father’s application for a Prohibited Steps Order restricting the Mother from removing the children from the UK to Malaysia and Hong Kong, both of which are non-Hague countries.
The starting point of the legal framework in cases such as these is section 13 of the Children Act 1989 which states:
‘where a child arrangements order [which regulates when and with whom the child concerned is to live] is in force in respect of a child…no person may…(b)remove him from the United Kingdom …without either the written consent of every person with parental responsibility for the child or leave of the Court’.
And
‘does not prevent the removal of a child, for a period of less than one month, by a person names in the child arrangements order as a person with whom the child it is to live’
In the case of Re A (Prohibited Steps Order) [2014] 1 FLR 643, the following was set out:
- 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.
- If in doubt the Court should err on the side of caution and refuse to make the order.
- Consideration should also be given to:
- The degree of risk of abduction.
- The degree of harm to the children and the father as a result of their abduction.
- Safeguards that reduce the risk of abduction and those that increase the likelihood of securing the children’s return in the event of abduction.
In the recent case, the decision to dismiss the Mother’s application to travel to Hong Kong and Malaysia was informed by expert reports on the laws in those countries and taking into account the safeguards in those jurisdictions to secure the return of the children to the UK if the Mother sought to unlawfully retain them there.
Comment
In this particular case, the parents had a very toxic relationship and the Court considered that the parents needed to develop a level of trust and cooperation to provide the children with emotional stability which was believed to be lacking at the current time. Therefore, the Court considered that if the Mother was permitted to travel to Hong Kong and Malaysia at this stage it would undermine further that process and lead to additional conflict.
It is therefore so important to seek independent legal advice if you have an intention to take the child/children abroad or if you have knowledge that your child may be removed from this jurisdiction. It is important to establish whether the country falls in the Hague convention and if not the laws surrounding that jurisdiction to enable the children to be returned to the UK if there is a concern regarding them being retained in that jurisdiction unlawfully.
How can we help?
Rina Mistry is a Senior Associate in our Family Law team, advising on a wide range of family law work, and in particular specialising in private children’s law and children matters.
If you need further advice on the subjects discussed above, please contact us and we will be happy to discuss your circumstances in more detail and give you more information about the services that our family law solicitors can provide along with details of our hourly rates and fixed fee services.
For more information or advice, please call Rina or another member of our team in Derby, Leicester or Nottingham on 0800 024 1976 or contact us via our online form.