Parental responsibility and travelling abroad with children

You will find information here about the Norwegian regulations relating to parental responsibility and the right to travel abroad with children.

Parental responsibility

In order for there to be wrongful child abduction, the remaining parent must have joint parental responsibility. The regulations in the country in which the child lives usually determine who has parental responsibility for the child. (The nationality of the child is not important in child abduction cases.)

For children resident in Norway, parental responsibility is usually determined either directly from the provisions in the Children Act, the Child Welfare Act, an agreement between the parents or through a court ruling.

Parental responsibility arises from the provisions of the Children Act:

• Parents who are married have joint parental responsibility for the children they have together. If the parents marry after the child is born, they will also have joint parental responsibility for the children they have together, cf. Section 34 of the Children Act.
• Co-habiting parents will have joint parental responsibility for children they have together, cf. Section 35 (2) of the Children Act. This applies to children born after 1 January 2006. Before this date, unmarried parents had to send notification to the National Population Register that they would have joint parental responsibility. If they have not sent such notification, the mother has sole parental responsibility.
• If the parents are not married or do not live together with paternity is established, the mother has sole parental responsibility, cf. Section 35 of the Children Act, unless they agree that they shall have joint parental responsibility or that the father shall have sole parental responsibility.
• When parents who have joint parental responsibility move apart, they will continue to have joint parental responsibility, unless otherwise agreed. If they do not agree, they may ask the courts to decide.
• Where an agreement determines the parental responsibility, this must be notified to the National Population Register in order to be valid, cf. Section 39 of the Children Act.
• If the parents do not agree on who shall have parental responsibility for the child, each of them may bring the case before the court, cf. Section 56 of the Children Act.
• The parents may amend the agreement regarding parental responsibility. If they do not agree about an amendment, either may bring action before a court, cf. Section 64 of the Children Act. A judgment, court settlement and agreement with enforcement may only be amended if special grounds so indicate.

Parental responsibility arising from the provisions of the Child Welfare Act:

• The county social welfare board may issue a care order and also decide that the parents shall be deprived of parental responsibility, cf. Sections 4-12 and 4-20 of the Child Welfare Act.
• The county social welfare board may decide to impose a ban on relocation of the child for a period of up to 3 months, when the child is living away from home, cf. Section 4-8 of the Child Welfare Act.
• The county social welfare board may decide to place and retain the child in an institution without consent, cf. Section 4.24 of the Child Welfare Act.
• The Child Welfare Services / prosecuting authority may issue an interim order in emergency situations pursuant to Sections 4-6 (2), 4-9 and 4-25 of the Child Welfare Act.

If a decision is made pursuant to the Child Welfare Act to deprive the parents of care for the child before the parents travel abroad with the child, this is sufficient to require the child to be returned under the provisions of the Hague Convention. The request for return of the child in cases pursuant to the Child Welfare Act must be submitted to the head of the Child Welfare Administration.

 

The Norwegian regulations when a parent can travel or move abroad with the child:

 

When one parent has sole custody

• When one of the parents has sole custody, in general, he / she may move abroad without the consent of the other parent, cf. Section 40 (1) of the Children Act. However, there is a requirement that the parent who wishes to move must notify the other parent no later than six weeks prior to the move, when there is an agreement or decision regarding access, cf. Section 42 (1), final sentence.

If the parents disagree on who shall have parental responsibility or with whom the child shall live permanently, the child must not move abroad until the matter has been decided, cf. Section 40 (2). It is not required that action has been brought before the courts, it is usually sufficient that the parents have been to mediation.

Even if the parents do not live together, the child is entitled to spend time with both parents, cf. Section 42 of the Children Act. A move to another country will generally make it considerably more difficult for the child to spend time with the non-custodial parent. The parent with right of access must, as far as possible, be allowed to express his/her opinion before the custodial parent makes decisions that make it impossible or appreciably more difficult to exercise the right of access, cf. Section 46 of the Children Act.

Pursuant to the preparatory works on the Children Act, an interim order that one of the parents has sole parental responsibility should be sufficient to allow the person in question to move abroad with the child (Proposition no. 56 (1996-97) page 85 - only in Norwegian). If in the interim order, the court wants to prevent a parent from moving abroad with the child before the matter has been finally decided both parents must be given joint parental responsibility (Karnov).

If the parents disagree on who shall have parental responsibility for the child, each of them may bring action before the court, cf. Section 56 of the Children Act. The court cannot determine joint parental responsibility with the limitation that the one parent can move abroad with the child without the consent of the other parent, refer to Rt. 2000 page 185.

Moving abroad could be “special grounds” pursuant to Section 64 (2) of the Children Act, which may give grounds for a review of the case regarding parental responsibility. The decision regarding parental responsibility, permanent residence and access shall primarily focus on the best interests of the child, cf. Section 48 of the Children Act. If the parent that remains in Norway brings action to have parental responsibility transferred to them, the child’s move abroad will be an aspect in the assessment of the best interests of the child.

Joint parental responsibility

When parental responsibility is shared, both parents must agree before the child can move abroad, cf. Section 40 (1) second sentence of the Children Act.

Either parent may take the child on short trips abroad, without the consent of the other parent, cf. Section 41 of the Children Act. What qualifies as a short trip abroad must be determined individually. For the parent with right of access, the right to travel will be limited by the visitation time to which he or she is entitled, and for the custodial parent, it is limited by the other parent’s right of access.

The court may prohibit travel with the child
However, the court may prohibit travel abroad with the child, if it is uncertain whether the child will return, cf. Section 41 (1) second sentence of the Children Act. The ban may apply to a single trip or in general. Such a decision may also be made in connection with a case concerning parental responsibility, permanent resident or right of access. The court may issue an interim order until the case is finally decided. If a ban on travel is imposed, the name of the child must be deleted from the passport of the parent who wishes to leave the country or the child’s passport must be revoked. The child may be placed in the care of other persons in a proper manner until the case has been decided. However, this is drastic action and should only be used when absolutely necessary to prevent the child from being taken out of the country unlawfully. In the preparatory works for the legal amendment in 1997, it is assumed that this will only rarely be relevant (Proposition no. 56 (1996-97) to the Norwegian Odelsting, page 52).

The condition for imposing a ban on travel is that the parents have joint parental responsibility and that it is uncertain whether the child will return (risk of abduction). It can hardly suffice that the other parent claims that there is uncertainty; there should be objective evidence. It cannot be required to substantiate that the child will not come back as long as the wording only states ”uncertain whether”. Other expressions used in the preparatory works are ”doubt about” and ”risk of” (Proposition no. 56 (1996-97) to the Norwegian Odelsting, page 85 and 52). The parent in question’s connection with other countries will be of great importance here; the stronger the connection to Norway, the less risk of abduction (page 52). An on-going child custody case does not general prevent holiday travel (cf. Proposition no. 56 (1996-97) to the Norwegian Odelsting, page 51) (Karnov).

However, the police may impose a temporary ban on travelling with the child

The police may impose a temporary travel ban in urgent cases; cf. Section 41 (3) of the Children Act. This may be necessary when the departure shall take place on the weekend, and the parent who wants a ban on travel has not been aware of the impending journey (Proposition no. 56 (1996-97) to the Norwegian Odelsting, page 86). The wording of the Act here uses the expression “risk of”. It is difficult to see that this should involve anything other than “uncertainty about” as set forth in Section 41 (1), especially as the preparatory works use the expressions interchangeably. The ban applies until the court can hear the case. The police’s travel ban lapses if the case is not brought before court within a reasonable time (Proposition no. 56 (1996-97) to the Norwegian Odelsting, page 86). It must be the time it takes to find a lawyer and for the person in question to submit a petition to the court. The person who has requested the ban must act quickly and more than one week should not be necessary (Karnov).

Regulations for travelling abroad with the child for the person who only has right of access

The parent who only has right of access cannot travel abroad with the child without the consent of the parent who has parental responsibility; cf. Section 41 (4) of the Children Act. If the custodial parent does not consent to the trip, the court may grant consent, if it is obvious that the child will return. For example, this may concern an ordinary package holiday where the return ticket is included. Such consent may be given generally or for a single trip. The question may be brought separately before the court or in a case regarding parental responsibility, permanent residence or right of access.