As the school summer holidays approach, many families will be making plans for a well-deserved break abroad. For separated parents, however, arranging a holiday can raise important legal questions, particularly where both parents remain involved in making decisions about their child’s upbringing.

Whether you are planning a family holiday overseas or have concerns about the other parent travelling abroad with your child, it is important to understand the legal position before any travel arrangements are made. Failing to obtain the necessary consent could result in financial loss, and legal disputes.

Planning Ahead

As with many issues affecting separated families, early communication can often help avoid disagreements.

If you are proposing to take your child abroad, it is sensible to discuss your plans with the other parent as far in advance as possible and provide them with relevant details, including:

· Travel dates;

· The destination;

· Flight information;

· Details of where the child will be staying; and

· Emergency contact information.

Providing clear information can help reassure the other parent about the proposed trip and may make it easier to reach agreement.

Do I Need Permission to Take My Child Abroad?

In most circumstances, a child cannot be taken outside of the United Kingdom without either:

· The consent / permission of everyone who has parental responsibility for the child; or

· An Order of the Family Court permitting the child to travel and be taken out of the United Kingdom.

Many parents are surprised to learn that taking a child abroad without the required consent / permission can amount to child abduction, even where the person removing the child is their mother or father. This can result in severe consequences for the offending parent.

Understanding who has the legal right to make decisions for a child is therefore essential before making any travel plans.

Who Has Parental Responsibility?

Parental responsibility refers to the legal rights, duties, powers and responsibilities a person has in relation to a child.

A child’s biological mother automatically has parental responsibility.

The other parent (i.e biological father / male parent and / or female parent) will usually have parental responsibility if:

· Are married to the child’s mother at the time of the child’s birth;

· Is named on the child’s birth certificate;

· Has entered into a Parental Responsibility Agreement with the child’s mother; or

· Has obtained a Court Order granting parental responsibility.

Other individuals may also hold parental responsibility, including adoptive parents, special guardians and certain individuals who have acquired parental responsibility through an Order of the Court.

Where There Is No Child Arrangements Order

If there is no Child Arrangements Order in place, the consent of everyone with parental responsibility will usually be required before a child can be taken abroad.

Generally, unless the trip carries with it an unreasonable risk of harm to the child, holidays abroad will generally be considered beneficial for a child.

Where agreement is reached, it is sensible to obtain that consent in writing and keep a copy when travelling. Border authorities may request evidence that the child has permission to travel, particularly where the accompanying adult has a different surname to the child.

If consent / permission is refused, it may be possible to make an application to the Family Court for a Specific Issue Order, asking the Court to determine whether the child should be permitted to travel.

It is important to seek legal advice as soon as possible if a dispute arises. The applications are rarely dealt with urgently and can take several months to progress. Leaving matters until shortly before the proposed departure date may mean there is insufficient time for the issue to be resolved.

When considering such an application, the Court’s paramount consideration will always be the child’s welfare and best interests. In many cases, where the proposed holiday is of a reasonable duration, the destination is appropriate and there are no concerns that the child will not be returned to England and Wales, the Court is likely to view a holiday abroad as being in the child’s best interests.

Where There Is a Child Arrangements Order

The position differs where a Child Arrangements Order states that a child “lives with” one parent.

In those circumstances, the parent named in the lives with Order is generally entitled to take the child abroad for up to 28 days without obtaining the consent of the other parent, provided that:

· The trip does not conflict with any other terms of the Order; and

· The child is returned within the permitted period.

Whilst consent may not be legally required in these circumstances, it is usually advisable to keep the other parent informed of the holiday arrangements and provide details of the trip where possible. Open communication can help minimise conflict and support a positive co-parenting relationship.

What If I Am Concerned About My Child Being Taken Abroad?

There are circumstances where a parent may have genuine concerns about a child being removed from the jurisdiction, particularly if they fear the child may not be returned.

If this is the case, urgent legal advice should be sought. Depending on the circumstances, it may be possible to apply to the Family Court for a Prohibited Steps Order, preventing a child from being removed from England and Wales without the Court’s permission.

In particularly urgent cases, the Court can deal with applications quickly to safeguard the welfare of the child.

How Berry Smith Can Help

Disagreements concerning children can be particularly stressful, especially where a planned holiday is approaching and communication between parents has broken down.

At Berry Smith, our experienced Family Law team regularly advises parents on all aspects of child arrangements following separation, including disputes concerning foreign travel and holidays abroad.

If you require advice about taking your child abroad, concerns about a proposed holiday, or any other issue relating to child arrangements following separation, please contact our Family Law specialists on 02920 345511 / 01656 645525 or email family@berrysmith.com.