Jacob Gifford Head | Temporary Removal of Children

Introduction

This article concerns situations where one parent or carer of a child wishes to take him or her out of the United Kingdom temporarily. This can include anything from a short holiday abroad, lasting a few days, to extended periods of time living in another country (e.g. if the parent is offered a temporary working contract abroad).

Situations where the parent or carer wishes to move permanently abroad are considered in my article “Permanent Removal and Relocation of Children”.

Whilst decisions as to whether to give someone permission to take a child abroad for a short period might seem less serious than applications where the parent wishes to remove the child permanently, these cases are often more complex. The reason for this is that the court does not simply have to decide whether the travel is appropriate but, also, whether there is a risk the child will not be brought back as planned and whether there are any methods of forcing repatriation if necessary. As a result, issues of foreign and internal law are often at the forefront of the court’s mind.

I should note that in these types of family cases the words “removal from the jurisdiction” and “removal from the country” are often used interchangeably. This is not quite accurate since Scotland and Northern Ireland are separate jurisdictions from England and Wales (which is, in turn, one jurisdiction). This article is only concerned with travel out-of-the-country. There are no general restrictions on taking a child from England or Wales to Scotland or Northern Ireland unless the court has previously ordered otherwise.

Permission from the Court: Do I need it?

A parent or carer does not need permission from the court to take his or her child from the UK in every case.

In cases where there has not been any previous court order specifically about travel, the situations in which permission is required is governed by two Acts of Parliament.

Child Abduction Act 1984

Subject to a number of exemptions, s.1 Child Abduction Act 1984 makes it a criminal offence to remove a child from the jurisdiction without leave of the court, unless proper consent is granted from all of those people who are specified in the section. They are:

• (i) The child’s mother;
• (ii) the child’s father, if he has parental responsibility for him;
• (iii) any guardian of the child;
• (iiia) any special guardian of the child;
• (iv) any person named in a child arrangements order as a person with whom the child is to live; [and]
• (v) any person who has custody of the child.

A child’s father usually has parental responsibility for a child in three situations:

1. When the parents were married at the time of the child’s birth;
2. When the parents were unmarried but the father is named on the child’s birth certificate as the child’s father; and
3. When the parents are unmarried and the father is not named on the birth certificate but the court has granted him parental responsibility.

“Guardians” (as opposed to special guardians) and persons with “custody of the child” are rarely encountered these days.

Although there is no requirement for the consent to be in writing, the difficulty in relying on oral consent is that the person travelling may face significant delays at the border if challenged to show that that consent has been obtained. As a result, I would always suggest travelling with copies of the children’s birth certificates and a letter of consent from any relevant person to avoid this problem.

Children Act 1989

The second act is the Children Act 1989 which is the main source of law for the Family Courts when dealing with disputes involving children.

It plays an important part in these cases when the court has made a Child Arrangements Order (a “CAO”) which specifies with whom the child shall live. This is what used to be called a “residence order” and, before that, “custody”.

Once a CAO with a “live with” provision has been made, the requirement for consent becomes stricter. Under s.13(1) Children Act 1989, consent of every person who has parental responsibility is required and that consent must then be in writing.

However, the Children Act also grants an exception. Under s.13(2), a person with whom a child is to live under a CAO is entitled to remove him or her from the UK for a period up to one month without obtaining either written consent (under s.13(1)) or the leave of the court. This exception is also reflected in s.1(4)(a) Child Abduction Act 1984.

The s.13(2) exception is often misunderstood. There are two common misconceptions:

• Section 13(2) does not trump any contact provision within the CAO. For example, if a child is to live with her father and spend time with her mother every Wednesday evening, then s.13(2) would permit a long weekend abroad but would not permit her to be taken away for the whole of a half-term holiday unless the child arrangements were amended by consent or a court order.
• It is sometimes said, even by lawyers, that section 13(2) only grants permission to remove for up to 28 days. Under Schedule 1, Interpretation Act 1978, “month” means calendar month.

Also, the exception under s.13(2) does not prohibit the court from restricting a party’s ability to travel by making a prohibited steps order which will take priority over the exception.

Finally, it is worth noting that Special Guardians enjoy a similar exception under s.14C(4) which permits them to remove the child for up to three months without the written consent of everyone else who has parental responsibility (which will usually be the parents).

Permission from the Court

If a parent or carer wishes to take a child abroad but cannot obtain the necessary consents or rely on an exemption then he or she can apply to the court for permission. This is usually called an application for temporary leave to remove or “TLTR”.

How Does the Court Decide whether to Grant Permission?

There are two main issues that the court needs to decide. The first is whether the proposed travel is in the best interests of the child. This is sometimes called the “welfare” issue. Pursuant to s.1(1) Children Act 1989, welfare must be the court’s “paramount” consideration.

Secondly, the court must decided whether there is a risk of abduction or retention of the child abroad which outweighs the advantages of travel. Whilst this can be seen as an aspect of the welfare test—in that it is not in a child’s welfare to be abducted or wrongfully retained—it is often the substantive issue in these applications and I have therefore considered it separately.

Welfare Test

The question here is a simple one: is it in the child’s best interests to go abroad? In answering this question, the court is directed to have regard to the factors set out in s.1(3) Children Act 1989 which are often called the “Welfare Checklist”. They are:

• (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
• (b) his physical, emotional and educational needs;
• (c) the likely effect on him of any change in his circumstances;
• (d) his age, sex, background and any characteristics of his which the court considers relevant;
• (e) any harm which he has suffered or is at risk of suffering;
• (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
• (g) the range of powers available to the court under this Act in the proceedings in question.

The Welfare Checklist is considered in almost every dispute concerning children which comes before the court. However, its application is very child-specific: every child is different and every proposal for travel will engage different considerations.

In the context of TLTR cases, the following factors are often pre-eminent:

1. Does the child want to go?
2. Is the travel safe? (I exclude, here, the issue of abduction or wrongful retention).
3. Will the travel interfere with schooling?
4. Will the travel interfere with time spent with the other parent?

The first factor—“ascertainable wishes and feelings”—often causes much dispute. Often children are reported to be in favour or against one parent or carer’s plans. The extent to which the court accepts and relies on these views will depend on the child’s age and maturity. For young children up to, very roughly, about 8; the court will place very little weight on the child’s expressed views on the basis that the child is very unlikely to be able to weigh up all of the competing considerations and may, subconsciously, favour the view of the person with whom he or she is then living. On the other hand, for teenagers, the views are likely to be determinative. In between, the weight placed on any view will vary depending on the circumstances of the case.

CAFCASS is usually asked to assist with determining a child’s ascertainable wishes and feelings through the production of a report to assist the court under s.7 Children Act 1989.

Safety of travel is often raised by parents or carers in opposition to proposed travel but, in my experience, is dealt with in a very inconsistent way between Judges. It can sometimes reflect more the Judge’s personal attitude towards travel risk than the application of any standard, objective test. This problem was highlighted in AM v. DF [2017] EWHC 2034 (Fam) by Baker J (as he then was), when dealing with an appeal against a successful application for TLTR to Iraq:

[28] […] Particular care is required when dealing with an application to remove children to a country where there is social and political instability. At present, Iraq is manifestly one such country. In this case, the judge had little if any information upon which to make the careful and objective assessment required in such a case. The judge was provided with the FCO guidance recommending against any but essential travel to Iraq. He chose not to follow that guidance on the grounds that the mother was visiting close family members so that the position of the children in this case was "not to be compared with a foreigner entering the country". His assessment was that the mother and her family were well placed to make necessary judgements concerning the children's safety. But he had no evidence on which to base that assessment. […]

The difficulty is that beyond the FCO travel guidance there is very little information available to Judges when considering applications for TLTR to remove. The FCO guidance rarely gives the detail that is required. CAFCASS is rarely in a better position to assist. As a result, many Judges are faced with competing assertions from the parties: one saying how dangerous a region is, the other saying how safe it is, with very little to go between.

Similarly, there is considerable inconsistency between Judges as to how much interference with schooling is acceptable. Some believe in 100% attendance. Others are considerably more relaxed. At least with schooling, when this is a live issue, the views of the schools are usually available and of assistance.

In terms of contact with the other parent, if the proposed travel has a significant impact on the current arrangements, this may be a justification for refusing TLTR, although, in most cases it is usual for there to be indirect contact whilst the child is abroad, together with more frequent contact immediately prior, and after the travel to “make up” for the time missed.

Abduction / Wrongful Retention

This is often the most vexed issue in applications for permission to remove a child: is there a risk that the child will not be returned to the UK and, if so, is there anything that can be done to reduce the risk?

Pattern LJ in Re R [2013] EWCA Civ 1115 at [25]) set out three considerations for the court:

• a) the magnitude of the risk of breach of the order if permission is given;
• b) the magnitude of the consequence of breach if it occurs; and
• c) the level of security that may be achieved by building in to the arrangements all of the available safeguards.

The risk of breach and consequences of abduction or wrongful retention

The risk of abduction or wrongful retention should be measured in two ways:

1. How likely is it to happen?
2. If it happens, how serious will it be?

However, the courts have, historically, seen the consequences of abduction or wrongful retention as being immeasurably high and have therefore not given much consideration as to the likelihood of it occurring. For example, Thorpe LJ in Re K [1999] 3 FCR 673, [1999] 2 FLR 1084 held:

As the judge herself rightly noticed, if the contact order were breached despite all the husband's undertakings, then it would, as a matter of reality, be impossible to secure J's return to the country which has been his country almost throughout his life.

Of course the father’s impeccable record as a carer was highly relevant to an assessment of the risk of breach. But it was irrelevant to an assessment of the magnitude of the consequence of breach. Where the consequence of breach would be the irretrievable separation of the child from previous roots, then in my opinion it is for the court to achieve what security it can for the child by building in all practical safeguards.

Although this reasoning may no longer be sustainable and a slightly more sophisticated balancing of factors would be more sensible, it still appears to be good law. Accordingly, the focus in almost every case is on managing the risk.

Managing the Risk: The Hague Convention on Child Abduction 1980

The verbosely-titled “Hague Convention on the Civil Aspects of International Child Abduction” is an International Treaty designed to limit child abduction. In broad terms, it provides the following safeguards:

1. If a child has been abducted or wrongfully retained in a country which is a contracting party, the courts of that country will order the child’s return to the country where he or she was habitually resident before being abducted or wrongfully retained.
2. The courts must always act “expeditiously”.
3. The applicant (i.e. the person who claims that a child has been abducted or wrongfully retained) is entitled to legal aid to aid in these proceedings and may initiate proceedings in their own country.
4. If less than a year has elapsed between the abduction or wrongful retention and the date of the application for return, the court “shall order the return of the child forthwith.”
5. Even if more than a year has passed, only very limited defences are available.

The purpose is to ensure that there is a speedy and accessible way of returning children to their country of origin.

As result, if a parent wishes to take a child to a country which has signed the Hague Convention, there should be no question that the child can be brought back if necessary, significantly mitigating the risk. However, there are two issues: onward abduction and compliance.

Onward abduction is relatively straight-forward. It is the allegation that a parent will take a child from a Hague-Convention-country to one outside the Hague Convention. For example, it might be suggested that if permission is given for a child be taken to Hong Kong he might then be abducted to mainland China. Resolving this issue usually requires determining the true motivation of the trip having heard evidence from the parties.

The issue of compliance is little encountered in the English courts but is a substantial issue in the USA. There, the State Department is required to produce an annual report on Child Abduction and makes a list of “non-compliant” countries as well as providing country-by-country assessment of all other parties to the treaties. Whilst I have not seen it argued in practice, it seems to me perfectly possible that the respondent to any application for TLTR to a Hague-Convention county which has a poor compliance assessment might argue (perhaps relying on expert evidence) that it does not provide adequate protection in those circumstances.

Brussels IIR

For countries within the European Union, the Brussels II Revised regulations “concerning jurisdiction and the recognition and enforcement of judgments” (“BIIR”) provide further protections in cases of child abduction. However, in practice, there is no substantive difference to the court’s approach to an application for TLTR to BIIR countries as opposed to Hague-Convention Countries.

Non-Hague Convention Countries

For countries which are not parties to the Hague Convention, a number of alternative safeguards can be proposed.

The most attractive safeguard is a mirror order. This is an order made by consent in the foreign court in anticipation of the travel, requiring the child to be returned to the UK. The idea is that this makes it easier for the other parent to enforce a return. Sometimes, lack of time or other factors may preclude the obtaining of a mirror order. It may be suggested that the foreign domestic law provides an adequate safeguard in of themselves. Alternatively, it may be suggested that a mirror order might not be easily enforcible and so does not provide any adequate safeguard.

In all cases, expert evidence from a foreign lawyer is usually necessary to demonstrate that the proposed orders will have “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” (per Pattern LJ in Re R at [23]).

Other safeguards that have been approved by the court have included placing a charge over property, redeemable if the child is not returned (Re B (Children) [2015] EWCA Civ 1302) but often an impecunious applicant can do not more than offer an undertaking to the court on the basis that there is no reason to doubt that he or she would carry out an abduction (see e.g. M v. B [2014] EWHC 2686 where an oath on the Qu’ran was accepted).

Finally, I would note that it is fairly conventional, even in removal to Hague-Convention countries, for there to be safeguards such as the provision of return tickets; details of hotels etc.; and regular indirect contact by ’phone or Skype.

Other Issues: The Habitual Residence Trap for Ensuring Return

This point is often overlooked in applications for permission to remove for long periods of time. The difficulty that arises is this: whilst the application for permission to remove might be for a limited period of time, if the effect of the move is to change the child’s habitual residence from England and Wales to the foreign country, the English courts will lose jurisdiction over the child. Accordingly, the parent in the UK will have to seek relief from the foreign court if the child is wrongfully retained there beyond the end of the permission.

Furthermore, both the Hague Convention and BIIR define “wrongful retention” as being retention in a country where the child is not habitually resident. Accordingly, if the travel changes the habitual residence, then there may be no recourse to their summary return provisions.

Whether habitual residence is changed or not is a question of fact to be determined in light of all the circumstances of the case. Relevant considerations can include (per Lady Hale, given in the context of a BIIR case: A v. A [2013] UKSC 60 at [2]):

[...] the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family’s move to that state, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration.

The duration of the temporary removal is relevant but is only one factor. Significantly, there is no minimum period of time required (see Mercredi v. Chaffe (Case C-497/10PPU) [2012] Fam 22).

Whilst there are a thicket of reported cases on habitual residence, it is worth emphasising how frequently the court finds that it has been changed by short-term travel. For example, in AR v. RN [2015] UKSC 35, two children who were born in France acquired habitual residence in Scotland within a period of four months, despite there being no long-term plan to settle there.

Procedure: The Application

An application for temporary leave to remove is a conventional application for Specific Issue Order under s.8 Children Act 1989. The party seeking it therefore should attempt to engage in pre-proceedings mediation (the compulsory “Mediation Information & Assessment Meeting” or “MIAM”), unless exempt, and then issue a form C100.

Allocation: Which type of Judge?

When a new application is issued by the court, it should be considered by a legal advisor or District Judge for “gatekeeping”. He or she will then list the first hearing before a specific Judge or type of Judge.

The “Schedule to the Allocation and Gatekeeping Guidance” promulgated by the President of the Family Division, suggests that applications for temporary leave to remove to countries which are parties to the Hague Convention of Brussels IIR can be heard by a District Judge; whilst applications for temporary removal to a non-Convention country should be heard by a High Court Judge. However, in practice, almost all non-Convention cases are dealt with by a Circuit Judge sitting as a High Court Judge under s.9 Senior Courts Act 1981.

These provisions are often missed. For example, I have been instructed in a non-Hague Convention case which was listed before Magistrates (so three levels below the correct level of judiciary!) and so it may be helpful drawing the court’s attention to the matter to avoid wasting a hearing.

Determining the Application

Applications for temporary leave to remove are usually placed on the normal pathway for disputes between a child’s parents or carers. This usually entails listing a matter for a First Hearing and Dispute Resolution Appointment, at which any directions are made; followed by a further Dispute Resolution Hearing to see whether compromise is possible in light of the evidence then obtained; and, if necessary a Final Hearing at which oral evidence is heard and the court makes a determination.

There are two notable features of this:

1. The entire process can take some time (over a year in many cases). This means that a respondent can sometimes successfully filibust the application simply by opposing it. Accordingly, it is often better to apply for general permission rather than for permission for a specific trip.
2. If the case is likely to require expert evidence (e.g. it is to a non-Hague-Convention country or it is going to be suggested that the country does not properly enforce the Hague Convention) then it is necessary for the application for the instruction of the expert to be prepared in good time for the first hearing. This will require issuing a form C2 which complies with the requirements of Family Procedure Rules Part 15 (e.g. identifying the expert, giving details of his or her costs and timescales etc.)

Prevention of Removal

Although this is not the primary scope of this article, it is important to consider that the court has various powers to prevent removal of a child. Which ones are appropriate depends on the circumstances of the case and the urgency of proceedings. Part 4 of the Practice Direction 12F gives a helpful overview of some of the court’s powers. Practice Direction on 12E on urgent business should also be consulted before issuing.

Emergencies

At the most urgent end of the spectrum, a party might seek the following remedies on an urgent, without-notice basis, from the High Court:

1. A Prohibited Steps Order preventing removal from the jurisdiction.
2. A Passport Order granting the power to the Tipstaff (or, in practice, a police officer on the Tipstaff’s behalf) to seize and retain a child and his or her parents’ passports. This can include a foreign passport (c.f. Re A-K (Foreign Passport: Jurisdiction) [1997] 2 FCR 563).
3. A Location Order requiring the location of the child to be disclosed to the Tipstaff and a Collection Order allowing him to take custody of the child.
4. The court may order a port alert but an order is, formally, only required when a child is over 16. With younger children, it may be put in place by the police at the request of a parent for up to four weeks.

The court has no powers to prevent the issuing of foreign passports or visas. However, it can make a prohibited steps order preventing a party from applying for one (or instructing / encouraging others to do the same); and, also, issue a declaration respectfully requesting the foreign power does not issue any travel documents, with permission for the declaration to be disclosed to the relevant embassy or high commission.

Any application made urgently must set out the reasons for the need for expedition, as must any without-notice application. Whilst many cases are urgent, it is rarely the case that there should be no notice to the proposed respondent.

Strict compliance with FamPR 37—which concerns proceedings for contempt—and, in particular, the penal notice provisions are always required if there is any possibility that the order may be enforced.

Non-Emergencies

Often, parties believe that less draconian measures are sufficient to protect the children. In those cases, it is not unusual to see interim prohibit steps orders—without penal notices—together with a requirement for the surrender of passports to the custody of a party’s solicitors.