Travelling abroad following separation can add further considerations to what is often an already stressful experience.
If you are looking to take your child(ren) abroad following a separation, there are certain rules which must be adhered to, to promote collaborative co-parenting and, most importantly, to protect children against being removed from the country (whether permanently or temporarily) without the permission of all those with parental responsibility.
Biological mothers automatically have parental responsibility for their child(ren). Those parents named on the birth certificate or who are married to the mother of their child when the child is born are also granted parental responsibility. It is also possible for the Courts to award parental responsibility in certain circumstances. It is these people who together will need to provide their consent for the child(ren) to leave the country.
Legal Obligations
If there is a Child Arrangements Order in place, this may already set out legal obligations concerning trips abroad for those with parental responsibility. If it is ordered within a Child Arrangements Order that the child(ren) must live with you only, then (unless the Order states to the contrary) you are permitted to take the child(ren) abroad for up to 28 days without obtaining consent from anyone else with parental responsibility, although it is considered best practice to obtain their consent where possible.
It may be that the Child Arrangements Order already sets out the terms under which the child(ren) can be taken abroad. These terms, which may include the maximum length of the trip, countries to which the child(ren) are permitted to travel, the information which is to be provided to those who have parental responsibility, must be strictly adhered to in order to ensure that you do not break the Court Order.
Obtaining Agreement
Where you are the only parent with parental responsibility and no Court Order exists which refers to holidays abroad, you may not need to seek permission to take your child(ren) abroad, but it is always good practice to tell them of any plans you may have to avoid any issues arising.
In any event, it is always best to obtain the agreement of all parties with parental responsibility before taking (or planning to take) the child(ren) out of the country on holiday. Usually, a statement in writing or letter from those with parental responsibility is sufficient to evidence that you have received the appropriate permission to take the child(ren) abroad. In order to obtain consent in writing, details of the proposed trip should be provided to those with whom you share parental responsibility and be included within the body of the letter they will be signing.
Border Control Requirements
When you reach the border, you may be asked to provide the following documentation to evidence that you have permission to travel with the child(ren):
- Written consent from those with parental responsibility including their contact information.
- Details of the trip (such as an itinerary).
- Passport for your child(ren).
- Your child(ren)’s birth certificate or adoption certificate.
- Divorce or marriage certificate or change of name deed if there is any difference in surname.
Some countries impose very strict rules if child(ren) are travelling with only one parent and therefore it is recommended that you check the relevant country’s requirements before travelling.
Rejected Applications
Where those with parental responsibility will not grant permission for you to take the child(ren) out of the country, the Court retains the power to make an Order to approve or reject an application to take the child(ren) abroad on holiday. You would need to make an application to the Court and provide the Court with the relevant details of the holiday as well as information of others with parental responsibility. The Court is likely to require that a Hearing takes place to determine whether the holiday is in the best interests of the child(ren). It is highly unlikely that a Court would approve an application to take child(ren) abroad on holiday where there are any concerns that the child(ren) will not be returned or there are concerns for their welfare. Any application would need to be made in plenty of time before any planned travel, i.e. several months in advance, to ensure that the Court has time to deal with any such application.
Failure to follow the rules referred to above may result in arrest and a potential charge of Child Abduction. Where any removal from the country contradicts the terms of a Court Order, the Courts may impose a fine. If proceedings are ongoing, this could adversely affect a party’s case.
How we can help
This article provides general guidance, but you should consult a family lawyer who will be able to provide specific legal advice based upon your individual circumstances and that of your child to allow you to make an informed decision. By understanding the legal framework and practical steps involved, you can navigate the process more effectively.
For further information, please contact Megan Spicer in the Family team on 01202 725428 or email m.spicer@hklaw.uk. HK Law has offices in Blandford, Bournemouth, Crewkerne, Dorchester, Parkstone. Poole. Swanage. and Wareham.
