With the summer holidays in full swing, it can be an anxious time for separated parents who are trying to navigate the school holiday period. If it has been agreed that your child or children are to travel abroad with their other parent, you would expect your child to return at the end of the holiday, but what happens if your child does not return as planned?
This can be an extremely stressful situation, particularly when trust has been broken, however it’s important to be aware of some of the practical implications involved in organising the safe return of your child or children.
The country your child is visiting will dictate what happens next. A child travelling abroad who has not returned home is a “wrongful retention” which is a form of child abduction. If the country your child is visiting has signed up to the 1980 Hague Convention on the Civil Aspects of Child Abduction, then this provides an agreed court process for their return. It is worth checking the current list of Hague Convention countries at the time of travel, as they can change. All members of the EU, USA, Australia and New Zealand have signed the Hague convention.
If your child is being retained in a Hague Convention “contracting” state, an application can be made to the Courts in that country for their safe return to where they are “habitually resident”. A child is habitually resident in the country where they spend most of their time and where they normally live. If your child usually lives with you in Scotland, then Scotland is their “habitual residence”.
It is important that a child abduction issue is dealt with quickly, following the failure to meet the confirmed arrangements between parents. This will avoid any question of a possible change in the child’s habitual residence to the country they are now in, or a suggestion that you have agreed to them moving there. These issues could prevent or delay their return.
Your child should return to you with the assistance of the Government in the country they have been taken to, if it has signed the Hague Convention on Child Abduction. It is important to note that the foreign Court dealing with the return does not deal with or intervene in any other issues relating to parental rights and custody of the child. They will only deal with the return of the child or children, however in some very limited circumstances, for example if there is a grave risk of harm to the child, they may not be returned.
If your child is being retained in a county that has not signed up to the Hague Convention, then you will be required to make an application to the Courts of that country for the return of your child. This will be dealt with according to the law in that country, rather than the process in the Hague convention. The outcome will depend on that country’s own child abduction laws and will be decided through their courts.
Some countries have their own child abduction protocols with the United Kingdom. Pakistan, for example, is a non-contracting state of the 1980 Hague Convention, but there is a UK-Pakistan Protocol which can be followed for child abduction matters between the two countries.
If you have concerns about where your child is travelling to on holiday with their other parent or need help in organising their safe return from abroad, you should seek legal advice from a family law specialist on your options.
*This article originally featured in The Scotsman on 7 August 2023
