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17 May 2017

25: Why all the fuss over a holiday?

Sadly, separated parents often fall out over holidays. There can be a whole host of reasons for such disagreements. Sometimes the opposition to a holiday with one parent can seem like spite or jealousy on the part of the other parent. Often it will be said that there is a genuine worry about the welfare of the child concerned. Matters are complicated where the proposed holiday is abroad; more so where the family is an international one with links to the proposed destination or a neighbouring country. Recently Mr Justice Jackson had to deal with such a case. Whilst his decision is not ground breaking, it is illustrative of how judges deal with matters where parents cannot agree.

The case, involving a 5-year old boy, W, was certainly international in nature. His mother was European and his father Asian. She was Catholic and he was Muslim. They both lived in England. Following their separation, and subject to a court order, W was, in broad terms, having contact with his father on a fortnightly basis. The issue which arose was that the father wished to take W to his home country from time to time to see his extended family.

The country concerned was not a signatory to the Hague Convention (a useful and effective mechanism for the return of a child who is wrongfully removed from the jurisdiction or retained away from it). The mother therefore sought an order preventing the proposed holiday.

To assist the court, a guardian was appointed for W and she originally supported the father’s application. However, she later changed her stance and thought the court should delay its decision but said that the court would need to be satisfied that W’s safety would not be compromised and that his father could appropriately safeguard him and return him to his mother at the end of the holiday.

It was accepted by the father that his family home in the non-Hague Convention country was ‘highly abnormal’ to the extent that it required a serious security presence. The mother’s opposition centred primarily on three issues, firstly, a fear that W would not be returned; secondly, the high security presence and the fear that W’s paternal grandparents could be subject to or caught up in an attack; and thirdly, a worry generally that she would not be close to W were he to need her.

The father’s case was that he had firm roots in this country, including his career, his marriage and his child. He therefore had good reasons to return following the holiday. He also gave sworn undertakings that he would return W and offered a bond of money that the mother could use as a ‘fighting fund’ were he not to do so.

The judge reminded himself of the law, not least the need to consider W’s welfare, and also that the court had to be positively satisfied that, where there was a risk of abduction, the disadvantages of that risk were outweighed by the advantages of what was proposed.

The judge went on to find that the risk that the father would fail to return W was non-existent. Moreover, whilst the risk to W’s security was a ‘background factor’, it was as in the judge’s opinion hugely outweighed by the short, medium and long-term advantages of his relationship with and understanding of his paternal family.

In an important passage the judge said:

‘To say to somebody that they should not take their children on holiday to a country that is experiencing unrest might be a very strong argument if they were going there purely for pleasure, but it has to be looked at in context if you are in fact addressing a family who originate there and who may have entirely different needs. In this case what is significant, to my mind, is that the father himself and his two brothers and his sister, and all the six children of his siblings and his parents have lived in stable conditions. There is no report of any attempt, still less a successful one, to threaten their security and the cousins who W knows from their visits to London have grown up safe and well’.

Accordingly the judge directed that, during the course of 2016, W would be permitted to travel for 1 week to the country in question, in 2017 for 10 days and from 2018 onwards, for a maximum of 2 weeks, unless otherwise agreed between the parents.

Of course, in an ideal world, parents would be able to agree questions relating to the upbringing of their children without recourse to the courts. There are a number of other options available to parents in dispute, such as mediation or arbitration, but this latest case highlights that the court is available as a last resort.

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