Ann Thomas sets out the problems that can arise when travelling abroad with a child.
It was 4.45pm on a dark Friday afternoon in late November when a call came in. The office was about to close with the weekend ahead. “I’m calling on behalf of my girlfriend, Anna,” Joe introduced himself. “We met a few months ago. Anna is on a plane to London from Madrid with her two-year-old son, Oliver. She has been held prisoner by her husband, Tim, and has managed to escape.” He pleaded for my help for her. He was worried that managing to get her back to this country with their son wouldn’t be the end of it for her. How right he was.
I am a specialist international child abduction lawyer, working to secure the return of children taken, or kept, abroad by one parent against the wishes or knowledge of the other parent. I am used to emergency work as it is the nature of these fast-moving situations. Joe explained more.
He had met Anna in London. They had fallen in love. Anna had told me that she was married but her husband, Tim, was very controlling and had anger problems. She said Tim wanted a fresh start for the family by moving to Spain. Tim had managed to secure a job in Spain where he had spent time there before they met, but Anna had no connections; she spoke no Spanish. She was happy in London.
Anna couldn’t remember ever saying that she would move to Spain, nor was she sure she had ever categorically refused to go. She had been afraid of him. And so, things spiralled out of her control, as she described it to Joe. Tim knew she was reluctant but pushed ahead. Tim started packing his belongings and agreed that Anna would follow him a month later. All their furniture and household items were to be shipped to Spain. Tim paid the shipping fees. He transferred their bank account to Spain and gave notice to the utility companies. There was nothing else for Anna to do apart from signing the dockets when the furniture was collected, packing her and Oliver’s clothing, some toys and to catch the flight. But meeting Joe changed everything for Anna who was now certain she did not want to move to Spain.
Nonetheless Anna said she felt she owed it to Tim to meet him face to face to tell him that their relationship was completely over, and she knew she had to do so quickly. She thought it would be wrong to tell him by phone or in an email. Anna thought going to Spain was the right thing to do. She told Joe that she would travel with Oliver to Spain to tell Tim that she would not be moving there permanently. She said she would take Oliver as she wanted him to see his Dad for a few days. She and Oliver would then return to England where they would build a life together with Joe.
Anna’s only worry as she travelled to Spain was how Tim would react to her ending the relationship but Oliver would be with her so all would be okay. She had not given a moment’s thought to the events that followed.
That evening after arriving in Spain, Anna told Tim their relationship was over. Tim was furious. Anna was scared. Anna then told him that she had met someone else.
Tim had left early for work the next day, and she was relieved to be on her own with Oliver. She went to the front door to take Oliver for a walk. The door was locked. The windows were locked. There were no keys anywhere. She went to her handbag and her phone was missing. Her passport had gone and so had Oliver’s. She was panicked.
When Tim came home, he made it clear she and Oliver would not be leaving. He was insistent that in time she would come round to enjoying life in Spain and they could reconcile. Anna bided her time.
After three weeks or so, Tim had become complacent. She found her phone and the passports. She phoned Joe and they planned her escape. Leaving a note for Tim, she fled to Madrid with Oliver. In Madrid she arranged air tickets and a little later they boarded the plane ‘home’.
Anna and Joe came to my office on the Monday morning to sort out arrangements for Oliver. It was then that I had to tell her the chilling truth of the trouble she may now face.
Tim was coming for her. This time she would be held out to be the one to blame. The criminal. The force of the law, in both England and Spain, was about to knock on her door.
In the middle part of the last century, with greater availability of travel, a problem arose around the world of parents snatching children away from the other parent and taking them to another part of the world, perhaps their own home country, from which it would be incredibly difficult to secure their return. In 1980 a major piece of international law, the Hague Abduction Convention was created, now signed by 103 countries. When a child is abducted or unlawfully retained in another country, that country takes urgent steps for the child to be returned to the country where the child previously lived. To abduct a child is a criminal offence. Tim claimed that Anna had abducted Oliver from Spain and wanted his son returned.
The Spanish authorities contacted the UK government which in turn instructed specialist lawyers for Tim to secure the return of his son to Spain. High Court proceedings were issued against Anna. A High Court official, a Tipstaff, came to Anna’s door a week or so later, taking her passport and Oliver’s. She was ordered not to leave her home and to attend Court a couple of days later. I went with her.
Anna’s problem was that although she would say she had returned home to England where they lived, they had lost their legal connection with England by taking every step to move as a family to Spain. When Oliver’s little feet touched Spanish soil, his habitual residence, a legal concept of connectedness with a country, had changed to Spain from England. Anna could never have foreseen this. The fact that she was then held prisoner by Tim did not matter. Under the Hague Convention, Oliver’s habitual residence was Spain where he had to be returned to enable a Spanish Court to decide whether he should return to England with Anna or stay in Spain. Anna could barely believe it.
I made it plain to the judge that we would be defending this matter, but I knew it would be very difficult to succeed. For the second hearing, Tim came to London. We spent the morning in Court, breaking at about 12.30 for lunch with a view to the judge giving his decision that afternoon, almost certainly compelling Anna to go back to Spain.
I had detected that Tim had indicated in his evidence that he may not be so certain that this is actually what he wanted to happen. He wanted a reconciliation. He wanted them all to happily live in Spain and probably still wanted that fresh start. He did not want what had happened and was now happening.
Clutching at a ‘last straw’, I recommended that Anna had lunch with Tim in the café across the road from the Royal Courts of Justice in the Strand. I suggested she talked to him to try to persuade him to come to an amicable outcome, to let her and Oliver stay in England and to arrange generous contact between him and Oliver.
Anna came back to Court at 1.45 pm and had a smile on her face. The first time I had seen that for several weeks. “He’s agreed to let me stay as long as Oliver can go out for school holidays. I was always happy with that”, she said.
I remember going in before the judge who, curiously enough, was not too surprised. Judges have seen all sorts of situations. We agreed a court order for Anna to remain with Oliver in England, seeing his father in Spain during school holidays in Spain. It was agreed that Anna and Oliver were habitually resident in England so the English courts would sort out any future arrangements.
This was one of many situations we see as solicitors where a parent has done what they truly thought was in the best interests of the child and of a relationship. But in doing so had inadvertently or sometimes deliberately abducted a child as perceived by international law. Many parents in this situation have been shocked to be told this. Abducting a child is the last thing many vulnerable parents think they are doing. Some parents have been branded criminals. Some have spent time in custody. Some are prevented from being full time carers for their children. The majority are compelled, with safeguards put in place by the Court, to go back to the country they had left. Some countries are not so liberal and fair-minded in looking after the best interests of children and the vulnerable parent.
International travel has increased beyond measure since 1980 and there are a huge number of international families. Some of those leaving their home country to live in another may have children and want to return if the relationship breaks down. If there are children, it is impossible to do so without permission of the other parent or a Court Order, however much they might be leaving an intolerable situation. Doing the right thing especially for the child may not always produce the right thing in law. If the relationship breaks down, especially in an international family, heartache and legal problems abound.
A child’s habitual residence can change if there is a clear intention by a couple with parental responsibility for a child to leave one country to set up home in another. A child abduction can also occur if a child is wrongfully retained in another country beyond the agreed timescale (e.g. for a holiday abroad).
This is a very complex and specialist area of family law. It can involve an expensive legal wrangle that can upset your and the child’s life for months, perhaps years. The most important advice is to always seek specialist legal advice before steps are taken to travel abroad with a child. If Anna had done so before she took her son to Spain none of this would have happened as Oliver’s habitual residence would have remained in England.
Ann Thomas, a consultant in the Family Law team, is a guest speaker at the KILN Conference, Brisbane, Australia, where she will talk about ‘Hague Convention applications’, and will look at international family law applications that seek the return of a child from across international borders.