Posted: 22/09/2023
The news has broken that Game of Thrones actress Sophie Turner, and singer Joe Jonas, who have recently filed for divorce in the US, are at odds about which country their two daughters should be living in. Joe is American and Sophie is British. The children are currently in America with Joe, and it has been reported that Sophie has alleged, in a document filed in the American court, that while the famous parents agreed the children would travel to England with their mother on 20 September, Joe has not returned the children’s passports to Sophie to enable her to travel with them, thereby retaining them in America.
It is reported that Sophie has filed proceedings in America and has made an application to the Central Authority in England under the 1980 Hague Convention on child abduction, seeking a return of the children to England on the basis that they are habitually resident here.
It is not uncommon for separated international families like Sophie and Joe to find themselves in situations such as this and at Penningtons Manches Cooper we regularly advise parents experiencing the same issues. This article considers the matter of international travel with children, and what happens if there is a disagreement.
If you want to travel abroad with your child or children, you require the consent of every person with parental responsibility. Parental responsibility is automatically assigned to a mother who has given birth to a child and to a father who was either married to the mother at the time of the birth, or is named on the children’s birth certificate. In some cases, parental responsibility can be granted or extinguished by a court order. For the majority of families (although not all), both parents will have parental responsibility for a child and they must both consent before anyone can take a child abroad. If you are unsure who has parental responsibility for your children, a solicitor will be able to advise you.
If you have a court order which states that a child lives with you and spends time with their other parent, then you can travel abroad for up to 28 days without the consent of the other parent; however, to strengthen and protect a co-parenting relationship it is advisable to inform the other parent in advance of any holiday plans, providing them with full details of travel and where the child will be staying, and sharing emergency contact numbers.
Generally, consent should not be unreasonably withheld if the purpose of a child travelling internationally is for a holiday. If you find yourself in a dispute, you can apply to the court for an order permitting the children to travel for the purpose of a holiday.
It may be that consent is being withheld because there are concerns that a child is at risk of abduction or being retained in the country they are travelling to. If you would like more information on travelling abroad with children, please see here.
If a parent decides to travel abroad with the children without the consent of everyone who shares parental responsibility for the child, this is child abduction. If a parent keeps a child abroad after an agreed period of travel and does not return them to England when they were supposed to, then this is wrongful retention of a child. Child abduction and wrongful retention are both criminal offences in the UK.
If you are concerned that there is a risk your child may be taken abroad or retained in another country without your consent, this is a very urgent matter and you should take legal advice immediately. The sooner protective action is taken, the better your prospects of success are.
If you get wind that your child may be taken abroad without your agreement, the English court can make protective orders, which may include:
If a child has already been taken abroad or has not been returned from a trip as agreed, you must again act quickly and take legal advice. The first thing that your solicitor will consider is whether your child is in a country that is a signatory to the 1980 Hague Convention on child abduction. In the case of Sophie and Joe, both England and America are signatories to the convention, and this is why she has made an application to the Central Authority. There are 81 countries that are signatories to the convention.
If a child has been abducted to a Hague country, you can apply to the English court for an order that they are returned to their home country under the terms of the convention. There is a requirement for 1980 Hague Convention cases in these circumstances to be completed within six weeks of the application.
If your child has been abducted or retained in a country that is not a signatory to the convention, then your solicitor will help you seek advice from a specialist family lawyer in that country. Co-operation between England and the country of abduction will be necessary and every non-Hague country will have its own laws on child abduction; additionally, each case must be considered individually.
The English courts will generally only be able to deal with an abduction matter if the child is ‘habitually resident’ in England or Wales. The question of which country a child is habitually resident is one of fact and will depend on how integrated the child is in that country. A child can only have habitual residence in one country at a time and that is often difficult to determine when international families, like Sophie and Joe’s, spend significant amounts of time in different countries.
For an international family, it may be that one parent wants to relocate the children to live permanently in another country. Reasons could include because they want to return to their home country to live near family, they want to relocate for work, or they think the children should be educated elsewhere. In these cases, the consent of both parents is required and relocation without consent will be considered child abduction.
International relocation is often a binary issue with both parents having very strong views, and it is understandably emotive and difficult. Parents can attend mediation to see if an agreement can be struck. If this proves impossible, the parent who wishes to relocate the children can apply to the court for an order granting them permission to do so.
These court applications should not be undertaken lightly; an international relocation is a significant decision in a child’s life and the court will probe the relocation proposals thoroughly. If you are considering an international relocation, we advise taking legal advice at an early stage and thinking carefully about how the children’s relationship with the parent who remains in England will be maintained.
This article does not provide tailored advice and every family is different. International children matters are complex and the advice will be different depending on the countries involved. If you require advice on any of these issues, get in touch with the family team at Penningtons Manches Cooper who will be able to help.
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