With the summer holidays fast approaching, many families will be planning a holiday with their children, whether it is a staycation in England and Wales, or a trip further afield to a foreign country. As a result, a question commonly asked by parents involved in or facing relationship difficulties is, “Do I need permission to take my child on holiday?”
Permission to take a child abroad
If you are planning to take your child abroad then it is important that you check before you travel as to whether you will need to obtain permission from the other parent first. We recommend this is dealt with as early as possible and not left until the last minute and particularly before any holiday bookings are made or paid for.
If you are divorced or separated, then the question of whether you require permission from the other parent depends on who has parental responsibility for the child and whether there are any court orders currently in place.
Who has parental responsibility?
Parental responsibility means all the rights, powers, responsibilities and authority that a parent of a child has in relation to a child and the child’s property by law. A child’s mother will always have parental responsibility for her child. The same does not apply for a child’s father however and there remains a distinction between married and unmarried fathers which is that at present an unmarried father does not automatically acquire parental responsibility for his child, whereas a married father does, and divorce does not result in that father losing parental responsibility. If the child’s parents are not married when the child is born, then only the mother will automatically have parental responsibility and the unmarried father shall acquire it if:
- He marries the mother after the child is born;
- He enters into a Parental Responsibility Agreement with the mother and files it at the Principal Registry of the Family Division of the High Court;
- He obtains a court order granting him parental responsibility;
- He is named in a child arrangements order obtained from the court as the person with whom a child is to live. When the court makes a child arrangements order naming the father as the parent with whom the child is to live, it must also make a parental responsibility order;
- He is named in a child arrangements order obtained from the court as a person with whom a child is to spend time or otherwise have contact with and the court decides that it would also appropriate to make a parental responsibility order in his favour;
- He is named as the father on the child’s birth certificate for births registered from 1 December 2003;
- He becomes the child’s guardian; or
- He adopts the child.
Strictly speaking, a mother does not need to obtain permission to travel with the child if the child’s father does not have parental responsibility. However, it is recommended that all parents should consult one another before taking a child on holiday, especially abroad, so as to minimise the risk of any unnecessary conflict or concern.
If both parents have parental responsibility, then neither can take the child abroad without the permission of the other unless:
- A child arrangements order from the court is in place stating that the child is to live with one parent. That parent is then automatically allowed to take the child abroad for up to 28 days at a time without the consent of the other parent unless there is a court order stating otherwise.
- The court makes an order granting permission for the child to be taken abroad.
If neither of the above applies and a parent takes a child out of England and Wales without the consent of the other (or anyone else who may have parental responsibility), they are potentially committing the criminal offence of child abduction.
What if the other parent with parental responsibility does not consent to the child being taken abroad?
If you are planning on taking your child abroad and the other parent has parental responsibility, you should consult them as early as possible about the proposed trip. If they will not consent to your child travelling abroad with you, then you will have to obtain an order from the court granting permission for the child to be taken abroad. If you fail to obtain this then you cannot lawfully take the child abroad. The order which needs to be obtained is otherwise known as a Specific Issue Order. When deciding whether or not to grant permission, the court must consider whether the holiday is in the best interests of the child and to do this, the court will consider a checklist of welfare factors.
What if a parent wishes to prevent the other parent from travelling abroad with the child?
If you are a parent with parental responsibility and do not agree for your child to be taken abroad by the other parent, then you should notify them as such as early as possible. However, if you are concerned that the other parent will take the child abroad without first consulting you or obtaining your permission, you can apply to the court for an order preventing their removal from England and Wales. This is known as a Prohibited Steps Order and you can also ask for the child’s passport to be taken by the court. If you believe the other parent may be taking them abroad very soon, or that they will not be returned following a foreign holiday, it is important that you make an application to the court urgently as you may be able to apply for the case to be heard without the other parent present. This will minimise the risk of abduction. It is possible for an order preventing the child’s removal to be granted on a temporary basis until a hearing at which everyone can be present is organised. As with a Specific Issue Order, the child’s welfare will be the court’s paramount consideration when deciding this issue to be considered in line with the welfare checklist.
Is verbal consent enough, or should consent be obtained in writing?
Provided both parents agree to foreign travel, then it is recommended that written consent should be obtained as opposed to simple verbal agreement. A letter or email from the other parent confirming their consent should be obtained. The letter/email should set out details relating to the holiday including, departure/return dates, location/s and the contact details of the parent providing their consent. A copy of the written consent should be kept with you at all times during your travel and especially at the airport or border control where you may be asked to produce it as evidence of consent to travel.
Can I take my child on holiday in England and Wales without permission?
There is a distinction between taking a child abroad and taking them on holiday in England and Wales in that permission is not required for non-foreign holidays provided the holiday falls within any contact schedule or arrangements which have been agreed or ordered by the court. However, it is recommended as a matter of best parenting practice that parents should consult one another on all holidays planned, whether in England and Wales or abroad. If the proposed holiday will impact on child arrangements previously agreed between the parents or ordered by the court, then it is important parents agree the holiday and any changes that may arise as a result of it. If agreement cannot be reached then an application to the court may need to be made to deal specifically with this issue.
If you would like to make an appointment or have any questions arising from the matters raised in this article please call the Thompson Smith and Puxon Family and Divorce team on 01206 574431 or email firstname.lastname@example.org.