I have written here previously about the issue of a parent taking a child to a country that is not a signatory to the Hague Convention on Child Abduction. For example, in August 2016 I wrote about a Scottish case in which a father sought permission to take his two sons on regular visits to Algeria. More recently, in January I wrote about a case involving an application by a father of a 12 year old girl for orders preventing the mother from taking her for a holiday and a family reunion with the maternal family in Kurdistan.
Obviously, the primary concern of the court in these cases is that the child may not be returned to this country, and that without the protection provided by the Hague Convention it may be extremely difficult, if not impossible, to secure the child’s return.
And so it was in the High Court case Re DO & BO (Temporary Relocation to China), which was decided by Mr Justice Baker in April last year, but has only recently been published on Bailii. As the name indicates, the case concerned an application by a mother for permission to take her two sons to China, which is not a signatory to the Hague Convention, for a holiday. As Mr Justice Baker explained, the law relating to temporary relocation of children to a non-Hague Convention country is a balancing act between the advantages to the child of visiting that country and the risks to the child’s welfare if they are not returned.
The facts of the case were that the father has dual UK and Australian nationality and the mother is a Chinese national, but has recently acquired a British passport. They met in 2001 when the mother was studying in England. They married in 2007 and have two children, both boys, aged 8 and 6. The family lived in England.
The relationship between the parents was somewhat tempestuous, and broke down in 2015. Initially the boys lived with their father, but they moved to live with their mother in early 2016. Meanwhile, in November 2015 the mother applied for permission to remove the children for 21 days each year for a holiday in China. The father opposed the application, principally because of the risk that the children would not be returned.
The application was eventually heard by Mr Justice Baker, in February 2017. His findings were as follows:
- He was left with the strong feeling that the mother did indeed have a plan of some sort to work in China, as alleged by the father but denied by the mother.
- Contrary to the mother’s evidence, he concluded that the mother did retain an interest in a property in China which, as she said, was purchased for the specific purpose of providing a home for her in the event of her marriage breaking down.
- That, contrary to her evidence, the mother had comparatively few ties to this country.
- He was not convinced that the mother’s acceptance of the boys’ need to have a relationship with their father and her preference for them being educated in England would be sufficient to lead her to bring the children back if she thought that she and they could have a better life in China.
- In the circumstances he considered that there was a moderate risk that the mother would not return the children to England at the end of a holiday in China.
- That there were no effective safeguards which could be put in place to prevent the children being retained in China if the mother so chose.
- That the consequences for the boys of being retained in China would be devastating. They would be deprived of everything in their lives to date and, above all else, the relationship with their father.
“…it is manifestly in the interests of these boys to get to know their maternal family in China and have an opportunity to learn more about their Chinese heritage. In other circumstances, it would definitely be in the interests of the boys to be taken for a holiday in China. But in the light of my assessment of the risk that the children may not be returned to China, the lack of sufficient safeguards to ensure that they would be returned, and the dire consequences if they are not returned, I conclude that it is not in their interests to be taken to China at this stage.”
Accordingly, the mother’s application was refused.
The full report of the case can be found here.