Can I take my child on holiday abroad, even if the other parent does not agree?
Written by Rhianna Greenley | Family Team | 20 March 2024
“Can I take my child on holiday abroad, even if the other parent does not agree?”. It is a question I am frequently asked by clients, particularly in the run up to school holidays. The simple answer is that it depends on individual circumstances (and I am sorry this is the usual answer from a lawyer!).
Most people are shocked when I explain how taking a child abroad without the other parent’s consent could be considered child abduction. Unfortunately, what feels like an innocent 7-night holiday to France or Spain could be considered a criminal offence and so it is very important to understand the law surrounding this before booking a holiday abroad.
When I say abroad, I mean outside of England and Wales as this is considered outside of the jurisdiction of our Court.
If you have an Order defining the child(ren) lives with you (i.e. you have a “Live With” Order), you do not need permission from the other person(s) with parental responsibility to take them abroad. However, it is reasonable to inform the other person of the travel arrangements and some Court Orders might specifically require this information to be provided. It is strongly recommended that you take a copy of the Order with you, to present it to the border control.
Whilst there might be a Live With Order in place, which allows a parent to take the child(ren) abroad for up to 28 days without the other person’s consent, there might be a spend time with order in place. If there is a direction to make the child(ren) available to spend time with the other person, then you must ensure you do not breach the Order by booking a holiday during the other’s period. It might be the Order is varied in writing by agreement, but it is important an Order is not unilaterally breached.
If a Special Guardianship Order has been made, then there are different rules that apply.
We would recommend you seek independent legal advice if you are unsure on the terms of a Court Order.
If there is no Order in place, you would need to identify everyone with parental responsibility for the child(ren). We have previously provided a blog on what parental responsibility means and how you can obtain it, which can be found here.
If there is no Order in place, you will require everyone who shares parental responsibility for the child(ren) to consent to the holiday abroad. This should be in the form of a signed letter, which can be provided to the UK or foreign border. The letter should, as a minimum, contain information about the trip as well as contact details and the author’s express consent.
The UK Government also recommends that you take a copy of your child’s birth certificate (which is particularly important if you have a different surname from your child) and a copy of your divorce/marriage certificate (if you have one).
If everyone who shares parental responsibility for your child(ren) does not provide consent to the trip, you can apply to the Court for a Specific Issue Order. We would always recommend that you seek legal advice before making this type of application, to advise on the prospects of success and other options available. The Court will also want you to consider attending a MIAM (mediation information assessment meeting) before any application is made. This is because mediation is usually a quicker, cheaper, and less-stressful process which many separated couples utilise to try and resolve their differences amicably.
As explained at the outset, unfortunately there is no straightforward answer to this question as it does depend on the individual circumstances. However, if you are in any doubt, then it is always recommended to seek legal advice on your position – particularly as you and the children do not want to be turned away at the border. If we can be of any assistance, please feel free to reach out to us and we can discuss how we can help you.
You can contact our experienced Family team by calling 01752 827030 or emailing family@nash.co.uk.
