As we approach the end-of-year celebration and festivities, this can oftentimes be challenging for separating or divorced parents when determining a child’s living arrangements. A parent may seek to take some time away off-island with their child, or may intend to relocate altogether with their child to start the new year afresh elsewhere.

Subject to any relevant court orders that may be in place, if a parent wishes to take their child outside the Isle of Man they will need the appropriate consent from those who have parental responsibility. Not obtaining consent poses the risk of child abduction.

What is child abduction?

Child abduction is when a child has either been:

• Wrongfully removed by a parent away from their country of habitual residence; or
• Wrongfully retained by a parent in a location other than their country of habitual residence.

The removal or retention will be considered ‘wrongfully’ done if a parent has done so without the consent of the other parent or any individual who has parental responsibility of the child. Child abduction is both a civil and criminal offence in the Isle of Man.

The Convention on the Civil Aspects of International Child Abduction (the “1980 Hague Convention”) is a multilateral treaty that prescribes the legal procedures which seek the return of children back to their country of habitual residence. There are over 100 signatory countries to the 1980 Convention; the Isle of Man is party to it by way of the Child Custody Act 1987.

What is parental responsibility, and who has it?

Parental responsibility is defined in the Children and Young Persons Act 2001 as an individual who has all the rights, duties, powers, responsibilities and authority in relation to a child and their property.

More than one person can have parental responsibility, but only the following automatically obtains it upon the birth of the child:

• The mother;
• A married father/partner in a civil partnership with the mother;
• An unmarried father/partner not in a civil partnership with the mother if their name appears on the child’s birth certificate.

An individual may have obtained parental responsibility by way of:

• A Parental Responsibility Agreement with the mother;
• Adopting the child;
• Being named in a court order such as a Residence Order with whom the child is to live with; or
• Being appointed as a guardian of the child.

What is a country of habitual residence?

Although the 1980 Hague Convention directly cites the term ‘habitual residence’, it does not define it in the Convention itself. Rather, case law indicates the various factors the Court may take into consideration when determining what country is the habitual residence of a child. This includes the following (but is not exhaustive):

• How long the child has lived in a country;
• Why the child is living in a particular country, such as education, parent’s profession, extended family, etc;
• Where the child goes to school;
• What language(s) the child speaks;
• Where the child is registered with a GP and/or dentist; and/or
• How stable the residence is in which the child is living.

As an example, if a two-year-old child moves with their parents from Germany to the Isle of Man for a period of five years, attends school and builds a network of friends, only speaks English and has a registered GP, their habitual residence will likely be the Isle of Man (assuming that there are no outstanding factors to the contrary).

How do I avoid any allegation of abducting my child?

In the first instance, the parent needs to ensure they obtain the consent of the other parent (or another individual with parental responsibility) to leave the Isle of Man with their child.

If both parents (or a parent and another individual with parental responsibility) disagree about whether the child should leave the Isle of Man or not, an application can be made to the Court to obtain consent to take the child abroad. This will usually lead to Court proceedings to determine what is in the best interests of the child.

Aiza Khan is a trainee Advocate at M&P Legal due to qualify soon. This article should not be construed as legal advice; always take advice on individual cases.

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