Making plans for a foreign holiday with children can be difficult following a divorce or separation, and new issues may arise – such as do I require the other parent’s permission? In short, the answer to this question revolves around the issue of parental responsibility.
In England and Wales a mother has parental responsibility as an automatic right, whereas a father can obtain parental responsibility in four different ways:
1. by being married to the child’s mother
2. by being named on the child’s birth certificate
3. by entering into a Parental Responsibility Agreement with the mother
4. by obtaining a Parental Responsibility Order from the Court.
Where both parents have Parental Responsibility, and there are no Court Orders in place in relation to the children, then neither parent is permitted to take a child abroad without the other parent’s written consent. It is important to be aware that ‘abroad’ constitutes anywhere outside of England and Wales.
Where the Court has previously been involved with regards to the ongoing arrangements for the children, then the position may be different and the other parent’s written consent may not be required. For example, if you have a Court Order stipulating that your child is to live with you (i.e. a “Lives With” Child Arrangements Order), then you are permitted to take your child abroad for up to one month without the written consent of the other parent.
Whilst the other parent’s consent may not be required, it is responsible parenting to consult with the other parent regarding the trip and to seek their consent in any event. It can also be helpful to provide details confirming where the child will be staying, the date of departure and return, as well as the flight details and any key contact numbers. By providing the above details, and seeking to agree the arrangements for the trip well in advance, this can help to avoid misunderstandings, accusations of abduction and unnecessary Court Applications. You should also get a letter from the other parent confirming their agreement to you taking your child out of the country for this particular trip, to include details of the flight and destination, which you can show to the airport authorities. Ideally this should include details of the other parent’s address and passport details, together with a copy of any Child Arrangements Order, if one has been made.
For parents who are not separated, but who intend to travel alone with their children, the issue of permission is still relevant. For example, South Africa and Norway both have very strict rules regarding evidence of permission for children to travel. It is therefore important to check the entry requirements for the country that you intend to visit, and ensure that you have the appropriate documentation in place prior to travelling. This will help to prevent any difficulties at immigration upon arrival. Even if the holiday destination does not have strict requirements, a letter from the other parent, as set out above, will be of assistance.
What if the other parent does not consent to the holiday?
If consent is refused, and there is not an existing Child Arrangements Order in place, then an application for permission will need to be made to the Court.
It should be stressed that a parent must have a good reason for refusing permission, such as concerns that the child will not be safe whilst on holiday, or that they might be at risk of being abducted (i.e. taken abroad and not returned). Hostility between parents is not a good enough reason to refuse permission.
In the normal course of events, permission for a child to go on holiday is invariably given by the Court. This is of course subject to the travelling parent demonstrating that suitable travel arrangements have been made, and that the host country is a safe and appropriate destination for a holiday.
It should be noted that if grandparents, or indeed any other family members wish to take a child abroad, then permission will be required from both parents who have parental responsibility for the child – permission from one parent is not sufficient.
If you would like to know more about the topics discussed in this article, please do not hesitate to contact a member of the Birketts Family Law Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at July 2020.