Holidaying in non-Hague Convention Countries

Spring time – a time of year when lots of families look toward booking holidays for the summer. Holidays abroad with your children can sometimes be tricky to negotiate if you and your child’s mother or father are divorced. Trickier still are the legal practicalities involved if you want to take your children on holiday abroad to countries that have not signed the Hague Convention on Child Abduction.

What does the Hague Convention do?

The Hague Convention on Child Abduction applies to children under the age of 16, and assists a parent recovering their child, if the child has been taken to another signatory country. It’s often the case that the person who has removed the child is the other parent. The Hague Convention provides that signatories must effect the return of the child, and that the laws regarding guardianship should be respected between signatory countries. This means that if a parent takes their child to another signatory country without permission from the other parent, the signatory nation will facilitate the return of the child.

Complications from removal to a non-Hague Convention state

The situation is more complicated for a parent whose child has been taken to a country that has not signed the Hague Convention. The non-signatory nation is not necessarily obliged to return the child to their country of origin. Also, the parent who has removed the child will be subject to the family law system of the non-signatory nation, which might not provide a remedy. Recent case law on this subject has shown some of the complexities of taking children abroad to non-Hague Convention countries. If you’re planning such a trip and the other parent is likely to object, it’s worth bearing these in mind.

Re: Do and Bo (Temporary Relocation to China) [2017] EWHC 858 (Fam)     

The case of Re: Do and Bo concerned a family who lived in the UK. Although divorce proceedings had been instigated previously, the parents were still married at the time of the dispute. The mother was a Chinese national who had obtained a British passport, and the father was Australian. The father was worried that if allowed to go on a three week holiday to China, the mother might try to remain there permanently with the couple’s children.
The relationship between the mother and father was volatile, and there had been multiple allegations of domestic violence, to the extent that the police and child protection services were involved. The court heard the father’s answers to questions about his previous allegations about the mother’s mental health and alleged mistreatment of the children. In the judgement, the Honourable Mr Justice Baker stated:
”Through his answers […] on these topics, and his evidence overall, I formed a clear view that this father continues to want to control the mother’s life.”
An expert in Chinese law explained that if the children were not returned to the UK, the father would not be able to enforce an order to return the children to the UK through the British courts. He would have to undertake a hearing in China, where a British court order would not be enforceable. She also explained that China is not a signatory of the Hague Convention Against Child Abduction, so the Chinese legal system would not be obligated to return the children to the UK under the convention.
The judge found that there was a moderate risk that the mother would not return the children to the UK, preventing the children from having any future relationship with their father. He concluded that despite the potential benefits for the children of a trip to China to engage with their Chinese heritage, the risk that the mother would not return them to the UK was great enough to refuse them permission to take the holiday.

A against B (Scottish Sheriff Court) [2016] SC EDIN 53

Although this matter took place in a Scottish court, it was decided using principles from English case law. The father, who is Algerian, wanted to take his sons on regular holidays to Algeria. The mother, who is not Algerian, was against it.
An expert witness in Algerian Family Law explained that it would be extremely difficult for the mother to prevent the father from deciding to relocate permanently to Algeria. This is because Algerian law is based on Islamic law, which places the father in charge of guardianship decisions. Like in Re Bo and Do, the judge in this case acknowledged the benefits for the children of an opportunity to spend time in their parent’s country of origin. However, the judge rejected the father’s application to take his children to Algeria because of the lack of remedies for the mother under Algerian law.

M (A Child) (Temporary Removal to Kurdistan) [2017] EWHC 3492 (Fam)

M’s parents were Iranian Kurds. After the father was caught up in an incident involving Kurdish freedom fighters in which his colleague was killed, the family successfully claimed asylum in the UK. Subsequently, the parents separated. The mother wanted to take her daughter to the Kurdistan region of Iraq to see her extended family. However, the father applied to prevent the mother from taking the child to Kurdistan, on the basis that it was too dangerous, and initially under the suspicion that the mother would go from Kurdistan to Iran with her daughter and never return.
The judge held that the risk of injury or even of death for the child was great, and the mother would not be able to protect her daughter if the risk arose. Although the judge found that the mother would not take her daughter permanently to Iran, she did conclude that the dangers to M’s safety in travelling to Kurdistan were so great that they outweighed any benefits of meeting her extended family and therefore denied them permission to travel to Kurdistan.

Conclusions

Cases involving holidays to non-Hague Convention Countries are interesting because UK courts have to consult with experts on the relevant jurisdictions to understand how their family law systems operate. This evidence has a strong bearing on whether or not judges will allow a parent permission to take their children to such a country, because of the available remedies for the other parent if they decide to remain there permanently. Courts can also deny parents permission to take their children abroad if the destination is deemed unsafe for the child.
A balance has to be struck between the benefits for children of learning about their cultural heritage and meeting their extended family, and the risks of being kept in the other country permanently or exposure to danger.
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