Guide for Parents Taking their Children Abroad this Summer

The summer holidays are fast approaching and many parents are looking forward to taking their children away on holiday, some, to a foreign destination.

But what if the parents are separated and just one of them wants to take the children abroad on holiday? What steps do they have to take?

In this guide we will look at the law on taking a child abroad after divorce, the legal steps a parent has to take, and some of the practical things they need to know.

The basic rule on taking a child out of the country

The basic rule is quite simple. If a person takes or sends a child under the age of 16 out of the UK without the consent of those with parental responsibility or consent from the court, then that is child abduction (note that taking a child from one country in the UK to another country within the UK, for example from England to Scotland, is not child abduction and does not require any consent, although you should still discuss the matter with the other parent if they have contact with the child).

Child abduction is a criminal offence and therefore it is essential that any parent wishing to take a child under the age of 16 out of the country has the consent of everyone else with parental responsibility for the child, or the permission of the court.

The next question, then, is, who has parental responsibility for the child?

Who has parental responsibility?

Parental responsibility is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

A mother always acquires parental responsibility automatically and this can only be removed by the making of an adoption order.

Where the child’s parents were married or in a civil partnership at the time of the child’s birth, then the father will also automatically acquire parental responsibility and this can only be removed by the making of an adoption order.

Where the parents were not married, the father will acquire parental responsibility if he is named on the child’s birth certificate, if the parents both sign an agreement granting him parental responsibility, or if the court grants him parental responsibility by making a parental responsibility order.

An unmarried father will also acquire parental responsibility for the duration of the order or the child attaining 18, whichever is the later, if the court makes a child arrangements order in his favour stating that the child should live with him.

This covers most of the possibilities for who may have parental responsibility but there are others who may have it, particularly non-parents who are close to the child. If in doubt, seek legal advice.

Exceptions to the consent requirement

There are a couple of exceptions to the requirement that a parent requires consent before taking a child out of the country.

The first is that if that parent has a child arrangements order stating that the child should live with them, then they can take the child out of the UK without the appropriate consent for up to 28 days. This should be sufficient for most foreign holidays. It should be said, however, that if you are taking advantage of this exception then you should of course notify the other parent of your intention to take the child/ren abroad.

It should also be noted that it is quite possible that both parents have a child arrangements order stating that the child should live with them, in which case they can both take advantage of this exception.

The second exception applies if the person wishing to take the child abroad has a Special Guardianship Order for the child, in which case they can lawfully take or send the child outside of the UK without the appropriate consent for up to 3 months. This does not apply to a parent, but it is useful to know if your child is subject to a Special Guardianship Order.

Obtaining the consent of the other parent

As will be seen, the most common scenario is where one parent wishing to take the child abroad needs to obtain the consent of the other parent.

But how do they go about this?

The obvious answer is to approach the other parent directly, although if they have a solicitor then you should raise the matter with them. You will need to give full details of the intended holiday, including the date you intend to leave, the date you will be returning, flight or other travel details and the address of where you and the child/ren will be staying.

If the consent is forthcoming, then it is best to have it confirmed in writing to avoid any possible problems down the line. The written consent should give full details of the holiday, as above, and should be signed by the other parent.

The consent can be withdrawn before the holiday, but the other parent will have to notify you.

Inevitably, the next question is, what happens if the other parent will not give their consent?

What if the other parent will not consent?

If the other parent will not consent to you taking the child abroad then you will have to apply to the Family Court for a ‘specific issue order’ whereby the court gives its consent to you taking the child abroad. Note that such an application can take time and the court is unlikely to agree to treat it as urgent. The application should therefore be made as far as possible in advance of the proposed holiday.

It is possible to refer the matter to Mediation if the other parent agrees, but that will also take time, and if the mediation is unsuccessful then it may be too late to apply to the court.

The court will decide the application in the same way as it will decide most other matters in relation to children, i.e. on the basis of what it considers to be best for the welfare of the child.

In most cases, the court will consider it to be best for the child if the holiday goes ahead, provided that it is for a reasonable time and to a ‘trusted’ destination.

If, however, there is any suggestion that the child may not be returned to this country then the court will want to investigate this before coming to a decision. If the destination country is not a signatory to the Hague Convention on Child Abduction (for example a country in the Middle East), then the court may be reluctant to grant permission.

Taking the child abroad without consent

As has already been stated, taking a child abroad without the appropriate consent is the criminal offence of child abduction.

But there may also be other consequences. If there are ongoing or subsequent court proceedings concerning your child, then the court is likely to be told that you took your child abroad without the appropriate consent. Obviously, the court is likely to take a very dim view of this, and it may therefore affect the court’s decision in those proceedings.

What documents do you need when you go?

So you have obtained the appropriate consent to take you child abroad on their summer holiday and the departure day arrives. What documentation do you need to take with you?

The first thing you will need is proof of the fact that you have consent to take your child abroad, so that you can deal with any query you might receive regarding the consent. What form this takes will depend upon the type of consent you have.

If the consent comes from a ‘lives with’ child arrangements order, as mentioned above, then you will need to take a copy of the order with you.

If the consent comes from a specific issue order, then you will need to take a copy of the order with you.

And if the consent was given by the other parent, you should take a copy of the written consent, signed by them, with you.

It can also be useful to take your child’s birth certificate with you, so that you can prove that you are indeed the child’s parent, if required.

If you are divorced and have remarried and your name is different from your child’s name then it may be useful to take evidence of your divorce (Decree Absolute or Final Order) or your marriage certificate, as proof of the change of name.

Lastly, you will of course need to take the child’s passport with you. Obviously, if the passport is in the possession of the other parent, then you will need to get it from them. If they do not agree to give it to you then you may need to obtain a court order requiring them to give it to you. You can obtain such an order at the same time as getting a specific issue order.

Getting advice

If you wish to take your child abroad on holiday this summer and the other parent does not consent, or if you are just unsure what legal requirements you have to follow, you should seek expert advice. Our family lawyers have the expertise required to advise you. To speak to one of our specialist lawyers, simply complete the form, here.