Passports, tickets, permission… the essential checklist for taking your child abroad on holiday

Category: Children, Cohabitation, Divorce, Family

With the school holidays upon us, many parents are finalising their plans for holidays with their children. For some, this will involve taking their child out of the country.

Foreign holidays and trips can be wonderful learning opportunities for children, but it is very important that parents are aware of the legal requirements for taking their child out of the country.

In order for a child to be legally removed from England and Wales, either

  • the permission of all persons holding parental responsibility for that child needs to be obtained; or
  • there needs to be a Court Order in place specifically giving permission for the proposed trip; or
  • a Child Arrangement Order has been granted to one parent, confirming that the child lives with them. If such a Child Arrangement Order is in place, the parent with the benefit of the Child Arrangement Order can take the child out of the country for up to 28 days for the purposes of a holiday. In these circumstances, other holders of parental responsibility do not need to provide their ‘consent’ to the trip, but they still need to be given the details of the proposed trip, including dates, destination, contact details etc.

So who are people with ‘parental responsibility’?

Mothers always have parental responsibility. Fathers have parental responsibility when a) they are married to the mother (it is not required that they were married at the time of the birth); or b) they are named on the child’s birth certificate for all births registered since 1 December 2003; or c) they have been granted parental responsibility by Court Order or formal parental responsibility agreement.

Since the law extended automatic parental responsibility to fathers named on the birth certificate, the majority of fathers share equally parental responsibility with the child’s mother.

Other holders of parental responsibility will be anyone who has been granted parental responsibility through the making of a Child Arrangement Order (previously a Residence Order).

What if the other person with parental responsibility doesn’t agree to the holiday?

Removing a child from England and Wales without the permission of the other holder(s) of parental responsibility is a very serious matter.  The act of removing the child is classified as Child Abduction and can carry serious criminal consequences.

If the other holder(s) of parental responsibility do not agree to you removing the child, you will need to change your holiday plans and stay in England and Wales, or you will need to make an application to court for a ‘Specific Issue Order’, seeking the Court’s specific permission to take your child on the holiday.

In determining an application like this, the Court has the welfare of the child as it’s paramount consideration.  The destination of the holiday, the duration of the holiday, and the intention of the parent seeking to take the trip will all be considered.  As a starting point, a Court is likely to consider that a holiday with a parent is probably in the best interests of the child and that any risks or ‘harm’ arising from the trip are negligible or manageable.  However, if there is reason to believe that a child may not be returned from the trip, or there is a concern that the trip is being planned maliciously or with the main intention of defeating the other parent’s ability to have quality time with the child, for example booking a holiday over the only period that the other parent can take leave to spend time with the child, then a court could conclude that the trip is not in fact in the best interests of the child and refuse to grant permission.

How do you prove consent?

If the other holder(s) of parental responsibility agree to the trip, you should ideally request from them a letter confirming they agree to the trip. This letter can then be produced if requested at border control when travelling.

Ideally, remaining amicable or at least civil with the other holders of parental responsibility will give you the best chance of negotiating and agreeing holiday arrangements.  It is, of course, better to seek permission before booking the trip, rather than after, as the court process is unlikely to be quick enough to deal with the issue, even on an urgent basis, if you leave it until a week or so before you travel to seek permission, and the permission is refused.

At Nash and Co we have a highly professional Family team, led by Children Law specialist Eleanor Barber.  We would be happy to assist you if you require advice or assistance on any children disputes or issues.  Our assistance can include negotiating and recording consent to travel through to issuing an urgent court application where agreement is not possible.