When it comes to planning a holiday after a divorce, many parents may not be aware that taking their children abroad without obtaining the correct permissions could have legal consequences. Whether you wish to take your children on holiday after a separation or you have concerns about your ex doing so, here are some things to bear in mind when thinking about going away.
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Getting permission: under what circumstances do I need my ex’s consent?
Without the proper consent or the required legal responsibility for the child, taking children out of the country is considered abduction. While it is often believed that children are most often abducted by strangers, in fact it is parents who most commonly breach child abduction laws.
Unless you are in possession of a Child Arrangement Order or other appropriate permissions from the court, you’ll need consent from every person who has parental responsibility for the children before leaving – even if the child has little or no contact with the other responsible parent.
If you are the child’s mother, you automatically have parental responsibility.
A child’s father will have parental responsibility if he was married to the child’s mother, if he is listed on the child’s birth certificate (after 1 December 2003), if he has been granted parental responsibility by the court, or if he has entered into a Parental Responsibility Agreement with the child’s mother.
The child’s guardian or a person in possession of a Residence Order may also have parental responsibility. Bear in mind also that those who have not automatically been granted parental responsibility can apply for it.
Since every person with parental responsibility has a right to know their child’s whereabouts, the other party should be given at least the basic information about their ex spouse’ trip in advance: where they’re going, the dates they’ll be away, travel times, contact numbers they can be reached on in case of an emergency, and so on. Proper communication is important to ensure that everyone responsible for the child agrees to the trip.
If grandparents, other family members, or family friends wish to take the children on holiday, they will also need to obtain consent from all those who have parental responsibility.
Under what circumstances do I not need consent?
Consent is not always required. If you are in possession of a Child Arrangements Order (formerly known as a Residence Order) that specifies that your child should live with you, and if you plan to leave the country for less than 28 days, then you are not legally required to get permission from the child’s other parent.
You also won’t need consent if you are the mother and you have sole parental responsibility, or if you have been granted a court order permitting you to take your children abroad.
Even if you are not legally required to obtain consent, it nevertheless may be good practice to keep the other parent informed about your plans since, for instance, a father without parental responsibility could still apply for it, and then object to the child being removed from the UK. Failing to inform the other party could also lead to conflict and legal problems in the future.
What documentation do I need as proof of consent?
You may be asked to show certain documents at the UK or foreign border. Consent from your ex-spouse or the other responsible parent should be in written form: a signed letter that includes their contact information and details about the trip.
You may also need to provide evidence of your relationship to the children. Therefore, it would be helpful to have on hand their birth or adoption certificate, and in the case that your family name is different from that of the child, a divorce or marriage certificate.
Note that the laws around travelling with children vary in different countries, and some countries require extra documentation to enter.
In Canada, for example, you’ll need to bring a photocopy of non-travelling partner’s signed passport or national identity card, as well as a letter of consent and any relevant legal custody documents. For entry into South Africa, any person under the age of 18 must provide a full birth certificate stating the name of both their parents, alongside a letter of consent from the partner who is not present.
You can check with foreign embassies in the UK to find out what the requirements are in the country you’re travelling to.
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If you and your ex don’t agree: getting permission from the court
If you are the parent wishing to travel abroad and your ex-partner or other responsible parent does not agree to give their consent, you will need permission from the court in the form of a Specific Issue Order. This type of order is used to determine singular questions that arise in connection with issues of parental responsibility.
Applying for a Specific Issue Order involves informing the court about various aspects of the trip, including why you’ve decided to go, who will be going with you, the dates you’ll be away, your travel and accommodation arrangements, and the contact details of the other legally-responsible parent.
How can I stop my child from being taken abroad?
If you are the parent concerned about your ex-partner leaving the country with the children, you may apply for what is known as a Prohibited Steps Order. This is for cases in which a parent wishes to prevent someone from taking a particular action in relation to their child.
A Prohibited Steps Order can be issued to stop your ex from going away with the children if, for instance, there is a worry that the children may not be returned to the UK as agreed. In this case the child’s passport may have to be surrendered.
How likely is it that I will be granted permission to go abroad by the court?
While permission to go abroad with the children is often granted, there are certain factors that may complicate your case.
The court may object to your application if, for instance, it deems that the holiday is not genuine; if the destination country is considered unreasonable or dangerous; if the holiday is during the academic school year rather than during the school holidays; if there is a possibility that the parent may not return the children to this country; or if the parent themselves has threatened not to return.
Bear in mind that the primary concern of the court will always be the welfare of the children.
The Hague Convention and the risk of non-return: ensuring that your children are brought back to the UK
One of the major causes for concern for the court is the risk of non-return: that the child may not be brought back to the UK. If the parent travelling abroad can demonstrate that they have taken steps to guarantee the return of the child, then they are likely to granted the order.
On the other hand, travelling to a country from which the parent originated, or has family, may raise doubts over your intention to return, as would travelling to a country that is not a member of the Hague Convention. The Hague Convention is the international legislation concerning child abduction laws. It is designed to ensure that children wrongfully removed from a member country are returned as soon as possible, and provides safeguards such as entitlement to legal aid if the child has been abducted.
Note that the Hague Convention does not just apply to children who are UK citizens: if your child has been habitually resident in the UK, you will still need permission to take them abroad.
Countries contracted to the Hague Convention can be found here.
Because not all countries are signatories to the Convention, different destinations present different levels of risk in the eyes of the court.
For example, taking a children to Spain for a week is less likely to be an issue as it is a member country of the Hague Convention, which means that there are facilities in place to locate children and secure their return.
On the other hand, if a parent intends to visit a non-member country – and especially if there are other concerning factors, such as irregular finances, or it’s a country of their origin – the judge may have reason to object to their application to travel.
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