Problems in Taking Children On Holiday

4 January, 2019

 

The case of DO and BO 2017 EWHC 858 is a useful reminder as to the approach the court will take in the event that one parent wishes to take the children on holiday but the other parent is concerned that the children may not be returned.

In this case the mother, a Chinese national, made an application to the court for permission to take the two children of the family on holiday to China for a three week period.  The children were aged 8½ and 6 years old and resided in the UK with their mother, following the separation of the parties. 

Unfortunately, the parties in this case had a very difficult relationship with there being allegations of domestic violence and a charge against the father of harassment to which he pleaded guilty. 

The court identified three issues that needed to be considered in making its decision, as follows:-

  • The size of the risk of the mother breaching the order giving her permission to travel for a limited and specified duration only.
  • The consequence of a breach of the order if it occurred.
  • Any security that could be put in place by building in to the arrangements any relevant safeguards. 

The judge concluded that there was a moderate risk that the mother would breach the order in that she may not return the children to the UK at the end of the holiday but that the consequence of a breach of the order would have a devastating effect on the children in that if the children were retained in China this would  deprive them of everything in their lives to date in terms of friends, school, home environment and above all else the relationship with their father. 

The court went on to say that even though the father had behaved very badly at times the relationship of the children with him was strong and had been beneficial for them.

The judge also concluded that there were no effective safeguards which could be put in place in that the Chinese court may well make its own assessments of whether the children should be permitted to remain in China, as opposed to following the English order directing that they be returned.  The judge also noted that it would be very difficult for the father to make an application for the return of the children in the Chinese court. 

The court concluded, as a result of the above, that the risks were too high and that it was not in the children’s best interests to be taken to China by their mother at this stage and, on this basis, the mother’s application was refused. 

This case usefully demonstrates that the court will, where it feels appropriate, interfere with what might be considered to be a basic right of a parent to take their children abroad on holiday and is a useful reminder that the court will take action, where necessary, to protect children in these circumstances.