Separated and divorced parents and holidays abroad

As the summer holiday season is upon us, the issues surrounding separated and divorced parents and holidays abroad come to the fore. Family lawyer, Safeena Tufail discusses the legalities and practicalities including parental responsibilities, consent issues and child abduction concerns.

Many parents are unaware that it is a criminal offence to take their child out of England and Wales without the permission of every person who has Parental Responsibility for the child, unless permission of the Family Court has been granted.

Of course, the best way to deal with taking holidays abroad is for the separated / divorced parents to plan ahead and reach an amiable agreement. That said, we appreciate that this is not always possible and that relationships during separation and divorce can become particularly strained. In the case of parents of different nationalities, there may also be a concern that one parent is going to abduct the child and take them to live abroad.

Parental responsibility – who has it?

If you are planning to take your child abroad on holiday, the question of whether you will need permission from your ex is dependent on who has Parental Responsibility. It also depends on whether there are any court orders in place.

The child’s mother automatically has Parental Responsibility. A father will have Parental Responsibility if:

• he was married to the mother at time of the birth or subsequently, or
• his name is on the birth certificate (born after 1^st December 2003), or
• he has been granted Parental Responsibility by the court, or
• the mother and father have entered into a Parental Responsibility Agreement.

If both parents have Parental Responsibility then neither parent can take the child abroad without the other’s 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 for the child to be taken abroad.

If this does not apply to you and you don’t receive consent from the other parent (or person with Parental Responsibility) then you cannot take your child abroad.

Consent for holidays abroad – what happens when it is not forthcoming?

Whilst written consent is not strictly necessary, our advice would always be to get a letter of consent from your ex-partner. The letter should contain details relating to the holiday and their contact details. This will provide the necessary evidence and may be asked for at border control.

If consent is withheld then you can apply to the Family Court for a Specific Issue Order. The court will consider whether the holiday is in the best interests of the child before making the decision. The child’s welfare is always the court’s number one concern. Generally, the court will not look favourably on a parent who unreasonably withholds consent.

Parental child abduction – what if it is more than a holiday abroad?

If you are a parent who is concerned their ex may abduct the child and take them to live abroad, we can help you apply for a Child Arrangements Order. This will prevent your child from being taken out of the country. In England, Wales and Northern Ireland you may also be able to apply to have your child made a ‘ward of court’ through a Wardship Order. This means the court becomes legal guardian of your child and can decide what is in their best interests.

If, however, you are the parent who is legitimately taking the child on holiday abroad, then you should travel with the following documents to avoid any difficulties at border control in relation to parental child abduction:

1. A copy of the child’s birth certificate proving parentage. You can obtain copies from the General Register Office.
2. Proof that you are the parent (if you have changed your name, take a copy of the marriage certificate/proof of divorce).
3. An original signed letter (with copies, in case the documents are retained) from the other parent. The letter should ideally provide details of the trip and their consent, with a signature that corresponds to the birth certificate/other ID.

If you need advice on taking a child abroad on holiday, or have a concern about a potential parental child abduction, please call us in London (West Drayton) on 01895 449288 or in Hertfordshire (St Albans) on 01727 840900 or by email via our contact page.