With the arrival of summer, it is only natural that many families begin planning holidays abroad. Travelling with children becomes not only a moment of leisure and learning, but also an opportunity to strengthen family bonds and spend meaningful time together. However, when holidays involve children and separated or divorced parents, what may appear to be a simple logistical matter can become a serious legal issue - and even give rise to a risk of international parental child abduction.
It should be made clear from the outset that the purpose of this article is not to create any form of social alarm. Its objective is twofold: firstly, to provide awareness of the legal framework applicable to these situations - still largely unknown to many - and secondly, to raise awareness of the need to adopt preventive measures capable of effectively safeguarding one of the most fundamental rights of children: the right not to be unlawfully deprived of their family and removed from the centre of their lives.
“Dispensable Consent”: When the Exception Becomes the Rule
In Portugal, occasional trips abroad with only one parent do not, as a rule, require the formal authorisation of the other parent. By contrast, relocating a child’s habitual residence abroad constitutes a matter of particular importance requiring the consent of both parents or, failing such agreement, a court decision. A breach of this requirement may amount to wrongful removal or retention under the 1980 Hague Convention and, in certain circumstances, the criminal offence of child abduction.
The departure of children from national territory is governed by rules intended to strike a balance between freedom of movement and the protection of the child. Under the applicable legislation, children who are Portuguese nationals or residents in Portugal travelling abroad require written and certified authorisation from both parents only where they are travelling unaccompanied by either parent or accompanied by a third party who does not hold parental responsibilities.
In other words, where a child travels with one parent, the express authorisation of the other is not required - provided there is no court decision to the contrary, no formally registered objection, and no restriction on the exercise of parental responsibilities.
The rationale underpinning this rule is pragmatic. Family life involves numerous situations in which only one parent travels with the child - holidays, visits to relatives, sporting competitions, medical treatment or school exchange programmes. Requiring certified authorisations for every journey would create unnecessary bureaucracy and complicate the routine of thousands of families. Furthermore, the law proceeds on the basis of a presumption of cooperation and trust between parents, unless a judicial decision limits that exercise.
In practice, the Portuguese system seeks to reconcile freedom of movement with the legal protection of the child. The problem? The system is built upon an assumption of good faith that does not always exist. In situations of conflict - or where there is a well-founded fear of losing contact with a child - that trust quickly evaporates. Even where there is already a judicial decision regulating the child’s residence, the absence of automatic preventive mechanisms may allow one parent to take the child abroad without the knowledge of the other - and, at times, without any intention of returning.
Where Should the Line Be Drawn? Temporary Travel ≠ Change of Life
In a country where mobility forms part of everyday life, it is entirely natural for a parent to wish to take a child on holiday to Spain or France without facing a bureaucratic marathon. And rightly so: dispensing with formal authorisation only makes sense for temporary travel. But we must not confuse matters: taking a child to the beach in Ayamonte is not the same as taking the child to live in Brussels indefinitely and without the other parent’s consent.
Portuguese case law has been consistent on this point: changing a child’s habitual residence to another country constitutes a decision of particular importance, subject either to the agreement of both parents or to judicial authorisation. Ignoring this requirement may transform what began as a holiday into serious litigation and - legally speaking - international parental child abduction.
When a Trip Becomes Litigation: International Child Abduction
The phenomenon of international parental child abduction has been increasing alongside transnational mobility and the rise of binational families. It typically occurs where one parent takes a child to another country - or retains the child there - without the consent of the other parent and in breach of the parental responsibility arrangements in force.
There is not always bad faith involved. Many situations arise out of fear of losing the child, serious disagreements or post-divorce resentment. In other cases, the parent simply wishes to pursue a new professional opportunity, start a new life, return to their country of origin or relocate closer to extended family. Regardless of the motivation, the consequences for the child may be profound: emotional instability, disruption to schooling, cultural dislocation, the weakening of bonds with extended family and, above all, the loss of emotional continuity with the parent left behind.
The 1980 Hague Convention: What Constitutes Wrongful Removal or Retention?
These situations fall within the concept of “parental child abduction” as defined by the Hague Convention on the Civil Aspects of International Child Abduction (1980), to which Portugal is a contracting State.
The Convention establishes that the removal or retention of a child is wrongful where it breaches rights of custody - namely rights relating to the care of the child and, in particular, the right to determine the child’s place of residence - exercised jointly or individually by one parent under the law of the State in which the child was habitually resident.
Consequently, the Convention expressly provides that a child wrongfully removed or retained outside their country of habitual residence must be returned to that country as swiftly as possible, so that questions concerning residence and parental responsibility may be decided by the competent court.
There are, however, exceptions. Return may be refused, for example, where there is a grave risk to the child’s physical or psychological safety, where the other parent consented to the relocation, where a child of sufficient age and maturity objects to returning, or where more than one year has elapsed since the removal and the child is already well settled in the new country.
It should be emphasised that return proceedings are not intended to determine issues relating to parental responsibilities - such as residence or contact arrangements - nor to punish the parent who removed the child. Their sole purpose is to restore the situation existing prior to the wrongful removal and to uphold the principle of the child’s best interests, which first and foremost requires stability and emotional and legal continuity.
Within the European Union (with the exception of Denmark), the Hague Convention is supplemented by Regulation (EU) 2019/1111 - commonly known as Brussels IIb - which strengthens cooperation between courts, facilitates the recognition of judgments and establishes specific rules for cases of parental child abduction.
The Regulation does not replace the Convention but reinforces its application and, in the event of any normative tension within the EU, prevails by virtue of the primacy of European Union law.
The interaction between the Brussels IIb Regulation and the Hague Convention is fundamental to ensuring an effective legal response to international child abduction. Both instruments seek to secure the prompt return of the child to the State of habitual residence.
In summary: the Hague Convention establishes the global framework for return proceedings, whilst the Brussels IIb Regulation streamlines and strengthens the response within the European legal area, seeking to avoid contradictory decisions and procedural delays.
Portugal and the Central Authority: Where Do We Stand?
Any person, institution or authority who believes that a child has been wrongfully removed or retained may report the matter to the Central Authority of the child’s State of habitual residence or to the Central Authority of any other contracting State, in order to obtain assistance in securing the child’s return.
Since 1 March 2024, the Directorate-General for the Administration of Justice (DGAJ), through its International Judicial Cooperation Division, has acted as the Portuguese Central Authority for the purposes of the Hague Convention.
Its responsibilities include locating the child, promoting amicable solutions, supporting return proceedings and cooperating with the Central Authorities of other contracting States.
However, Portugal still lacks an autonomous procedural regime for these cases, unlike several other European countries. Portuguese courts continue to deal with such disputes as ordinary civil child protection proceedings under Article 67 of the General Civil Guardianship Proceedings Regime, which has led to variations in practical application and criticism from international bodies, particularly due to the risk of slow or contradictory decisions.
The absence of clear procedural rules has generated criticism both nationally and internationally and makes legislative intervention increasingly urgent. This legislative gap must be treated seriously: the absence of a swift and uniform procedure compromises the effectiveness of both the Regulation and the Convention and places the legal protection of children at risk.
Swift Justice, but with safeguards
The Hague Convention provides that return proceedings should be concluded within six weeks - a deadline which, unfortunately, is frequently exceeded in Portugal.
It is essential to ensure that, despite the urgency of such proceedings, the fundamental rights of both children and parents are safeguarded. Children have the right to be heard and to express their views whenever they possess sufficient age and maturity. Parents, likewise, must be guaranteed the right to adversarial proceedings and procedural fairness.
Justice cannot be rushed to the point of disregarding the basic principles of participatory and fair proceedings.
Justice that is excessively slow loses effectiveness; justice that is rushed and deaf to the parties loses legitimacy. The balance is demanding — but indispensable.
Conclusion: Between Affection and Legality
What may for many be a simple summer holiday can, for others, become international litigation with long-lasting consequences.
Parents undergoing separation should, above all, plan in advance and communicate openly, sharing all relevant information concerning the intended trip - itinerary, contact details, departure and return dates - as this is essential in building trust between them.
Where communication proves difficult, certain limits should ideally be established within a parental responsibility agreement or court decision - for example, maximum travel durations without authorisation or a list of permitted countries (such as Schengen Area States or Hague Convention States).
In situations of heightened tension, or where there is a genuine risk of removal without consent, either parent may submit, by telephone, email and/or fax, a request to the border control authorities opposing the child’s departure abroad.
As in so many areas of family law, prevention remains the best remedy. A simple email between parents, clear agreements concerning dates and the sharing of itineraries may prevent future litigation. And where the intention is to relocate abroad with the child, there are no shortcuts: it is necessary to negotiate, formalise arrangements and, where required, ask the court to have the final word.
Between the lightness of a summer holiday and the gravity of international child abduction lies an abyss that must not be ignored.
International child abduction is a phenomenon that grows alongside global mobility. Resolving it requires effective international cooperation, clear legislation and human sensitivity.
Above all, it requires that we never lose sight of the person at the centre of it all: the child.
Their stability, well-being and right to maintain meaningful relationships with both parents must always be protected.
What remains now is to ensure that the legal system functions effectively, swiftly and with sensitivity to the reality of each family.
Because no journey is worth the emotional rupture of a child.And no conflict justifies the forced separation of a child from one of their parents.
