Taking Children Abroad
- What is meant by taking my child abroad?
- Is there a child arrangement order in place which may affect you taking your child on holiday?
- Taking a child abroad with a different surname
- Benefits of getting permission to take child abroad letter
- What if I cannot get a permission to take child abroad letter?
- What if a parent wants to prevent the other parent from taking the child abroad?
- Taking children abroad without permission of the parent
- Courts granting permission to take child away on holiday
- Taking children abroad without permission of the Court where a child arrangement order is in place
- Taking children abroad without permission of the Court
- Making arrangements in advance before taking children abroad
- Benefits of getting legal advice before taking children abroad
When planning holidays many parents who have gone through divorce or separation often want to know if they need their ex-partners permission on taking children abroad.
Prior to travelling parents must ensure they are not committing child abduction and are legally entitled to taking a child abroad with one parent.
If both parents have Parental Responsibility then neither parent can take the child abroad without consent, unless:
- There is a Child Arrangement Order specifying that the child should live with one parent. If this is the case, the specified parent can take the child abroad for up to 28 days without the consent of the other parent; or
- There is an order from the court granting permission to taking children abroad.
These aspects will be considered below in some detail.
What is meant by taking my child abroad?
If you are taking your child anywhere out of the United Kingdom, then this will be seen as taking children abroad. Further complication is added given that the United Kingdom is made up of four countries namely England, Northern Ireland, Scotland and Wales which do not share the same legal system.
If you are taking your child from one legal system in the United Kingdom to another such as taking a child from England or Wales to Scotland (which has a different legal system) may be classed as abroad.
It is therefore extremely important that you are clear on where you are taking your child and whether this is classed as abroad.
Is there a child arrangement order in place which may affect you taking your child on holiday?
An extremely important factor to consider is whether a child arrangements order is in place. If such an order has been made by the court then no one can take the child away unless they have permission to take child abroad letter from every person who holds parental responsibility over the child or unless they have a court order which authorises them to take the child away.
If a parent is named on a child arrangement order as having care of the child, then that parent may take their child on holiday without permission from their ex-partner for a period of up to 28 days. They are granted this right under the Children Act 1989.
If a parent is not named on the child arrangement order, then they must obtain written permission to take child abroad letter from their ex-partner who holds parental responsibility before taking a child abroad. The permission to take child abroad letter can be obtained directly from your ex-partner if you are on amicable terms with them or through a family law practice.
Taking a child abroad with a different surname
Quite often a parent maybe taking a child abroad with a different surname. This is usually a case where the parent does not share the same surname with the child following a divorce or a separation, or where the child is from a previous relationship.
In such situations is advisable to evidence of your relationship with the child which may include a birth certificate, child arrangements order or a permission to take child abroad letter from the other parent. This evidence should be carried to ensure you are able to answer an queries that the border staff ma have and ensure you are not alleged t be carrying out the offence of child abduction.
Benefits of getting permission to take child abroad letter
One of the main benefits of getting a permission to take child abroad letter is that it prevents accusations of child abduction. As the letter would be in writing and signed by the other parent or someone with parental responsibility, it could be used as evidence of formal permission. A permission to take child abroad letter can also provide security. You might be asked for the letter at a UK or foreign border, or if there’s a dispute about taking a child abroad. By already being in receipt of this letter you can avoid delays and stress at the airport and ensure no disruption is caused to your long-awaited holiday.
What if I cannot get a permission to take child abroad letter?
Quite often one parent will not consent to the other taking the child abroad and may not be agreeable to providing a permission to take child abroad letter. In such a situation the parent intending to take the child abroad must apply to the family court. This application is known as an application for a specific issue order. This application is made where parents or anyone with parental responsibility are not able to reach an agreement over any issues concerning a child. An application for a specific issue order can be made by parents, grandparents, step-parents, anyone named on a child arrangements order and anyone with parental responsibility.
What if a parent wants to prevent the other parent from taking the child abroad?
Where consent of the other parent is required, the fact that it is not provided means that the child cannot be legally removed from the country without a court order. The other parent must therefore obtain permission from the court to take child abroad. If a parent believes that the other parent is going to take the child abroad without their consent an application can be made to the court for a prohibited steps order. If there is any concern that the child will not be returned from the holiday it is important that the application is made as quickly as possible to minimise the risk of child abduction.
Taking children abroad without permission of the parent
If a parent is named on a child arrangement order, then a child can be taken abroad for a period of up to 28 days. For this period in question a parent can take a child abroad without the permission of the other parent. Where a parent is not named on a child arrangement order then permission must be sought to take the child abroad. This can be either from the parent or anyone who holds parental responsibility from the child. If such person refuses, then permission must be sought from the court. Failure to take the adequate permission will be considered as child abduction. Child abduction is where a person takes a child away from their country of habitual residence without the required permission. Child abduction is a criminal offence under Child Abduction Act 1984.
Courts granting permission to take child away on holiday
In order to grant permission, the courts will consider whether taking children abroad is in the child’s best interests. The court is likely to grant permission for you to take your child abroad if the holiday is for a reasonable period, and to a reasonable destination. However, there may be complications if you wish to take your child to place which may not be safe. The main problem that arises in cases such as this is where there is perceived to be a risk that the child may not be returned to this country at the end of the holiday. This may be an issue if the parent has family living in the country to which they intend to take the child, and especially if the country is not a signatory to the Hague Convention on Child Abduction, the reason for this is that if a country is not part of the Hague convention on Child Abduction then it could be difficult to secure the return of a child.
In the recent case of Re DO & BO (Temporary Relocation to China) the judge refused the mothers application to take her children to China and stated “in the light of my assessment of the risk that the children may not be returned, the lack of sufficient safeguards to ensure that they would be returned, and the dire consequences if they are not returned, I conclude that it is not in their interests to be taken to China at this stage”.
Taking children abroad without permission of the Court where a child arrangement order is in place
If you are a parent who is named on a child arrangements order which confirms the child is to reside with them then permission is not required from the other parent or the court to take the child away. In this exceptional circumstance a parent can take the child without any permission providing there is no court order to the contrary.
Taking children abroad without permission of the Court
We have discussed above how you can take a child abroad without permission of the court where you are in possession of a child arrangement order which confirms the child is to live with you. But what if there is no child arrangement order? In such a case there are 2 options. You must either obtain permission from the other parent, which ideally should be written to take your child away. Alternatively an application for a specific issue order must be made where the other parent refuses permission.
Failure to take a child away without the court permission where one parent refuses and no permission from the court is sought is classed as child abduction. This is a criminal offence which could result in you being imprisoned. If you are a parent who has been refused permission to take your child abroad then contact us today to discuss your options.
Making arrangements in advance before taking children abroad
In all cases it is best practice to make arrangements in advance before taking a child abroad. This often avoids misunderstandings between parents and avoids problems with contact and accusations of child abduction.
If a parent requires permission to travel abroad with a child, again this should be sought in advance. If there are likely to be any issues with taking a child abroad or obtain permission to take child abroad letter, then these can be addressed at the earliest convenience. Parents wanting to enjoy a holiday with the child do not want to be in a position where they are unable to obtain permission from the other parent and will need to obtain permission from the court.
In the normal course of events permission for a child to go abroad on holiday is given by a Court. Details will be required stating where the child will be staying, giving the date of departure, return and details of flights. If however there are suspicions that the child will not be returned, especially if the child is going to a non-Hague Convention Country, then security will be necessary.
Benefits of getting legal advice before taking children abroad
It is beneficial for a parent who is considering taking their child abroad to obtain legal advice at their earliest convenience. No one wants to rush last minute or have the start of their holiday disrupted. Obtaining legal advice early carries the benefits of ensuring you have adequate permission and documents to take your child away. Family lawyers can act as mediators and can assist you in obtaining a permission to take child abroad letter. This letter can act as your defence to any allegations of child abduction and can also prevent delays at any airport.
Should parents not be on amicable terms family lawyers can issue formal correspondence requesting permission which could promote an active discussion between parents. If one parent is refusing permission it also provides the opportunity to ascertain their reasons for refusal which could be tackled to obtain permission from the court. Family lawyers can also assist with an application to the court to obtain permission to take your child out of the country.
It is therefore clear that parents must confirm whether they are legally able to take their child away on holiday and seek the appropriate permission from their ex-partner where this is required especially when taking a child abroad with one parent. Failure to do so could result in the criminal offence of child abduction. With family lawyers in Oxford as well as York, Newcastle, Northampton and London we are proud to offer local appointments to our client’s nationally.